City v. Cullinan

• Decision Date: 10 May 1902
• Docket Number: 12,626
• Parties: THE CITY OF KANSAS CITY et al. v. THOMAS A. CULLINAN et al
• Court: Kansas Supreme Court

68 P. 1099

65 Kan. 68

THE CITY OF KANSAS CITY et al. v. THOMAS A. CULLINAN et al

No. 12,626

Supreme Court of Kansas

May 10, 1902

Decided January, 1902.

Error from Wyandotte court of common pleas; W. G. HOLT, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CITIES AND CITY OFFICERS -- Special Assessment -- Publication of Ordinance -- Injunction -- Limitation of Action. Where the mayor and council of a city of the first class pass an ordinance levying special assessments for paving, and require the city clerk to cause such ordinance to be published in a daily newspaper, and where such clerk does procure the publication to be made, but, because of numerous errors appearing therein, ignores the same and causes the ordinance to be correctly published on the day following, and thereupon makes a memorandum in his ordinance book showing that such ordinance was published on the latter day, an action brought within thirty days from said last publication will be held to have been commenced in time to save the bar of the special statute of limitations created by section 766 General Statutes of 1901.

2. CITIES AND CITY OFFICERS-- Estimate of City Engineer -- Time for its Submission. The detailed estimate required by section 747, General Statutes of 1901, to be submitted to a city council by the city engineer before any "work or improvement shall be commenced," need not be so submitted before the mayor and council adopt a resolution declaring such improvement necessary, but must be prepared and filed before any liability in respect to such proposed improvement is incurred on behalf of such city.

3. CITIES AND CITY OFFICERS -- Authority of General Manager of Town Site Company to Sign Paving Petition. One who is the general manager of a town site company will be presumed to have authority to sign such a petition as is required by section 730, General Statutes of 1901, for and on behalf of such corporation, and the fact that he had previously signed similar petitions for improvements for which his principal had, without objection, paid out large sums of taxes is evidence tending to show the existence of such authority, and is not contradicted or overthrown by proof that the records of the company do not show that he was ever given any "specific authority" to sign that or any similar petition.

T. A. Pollock, city counselor, and M. J. Reitz, city attorney, for plaintiffs in error.

Angevine & Cubbison, for defendants in error.

ELLIS, J. DOSTER, C. J. JOHNSTON, J., concurring.

OPINION

ELLIS, J.:

These proceedings in error were brought by the city of Kansas City, Kan., et al., to review a judgment rendered May 19, 1900, in the court of common pleas of Wyandotte county, enjoining the collection of assessments levied by said city for the cost of repaving Kansas avenue from the west end of the bridge over the Kansas river to the west line of Mill street. For this improvement a petition was presented to the mayor and city council on the 8th day of February, 1898, signed by the resident property-owners of 4704 front feet, out of a total of 5290 front feet, of the lots facing the part of said street proposed to be paved. For 3141 feet of these lots the petition was signed: "Kaw Valley Townsite and Bridge Company, by Charles F. Morse, manager, by authority of the board of directors. Attest: E. E. Richardson, secretary." Said town site and bridge company is a Kansas corporation. It is, and was at the trial below, earnestly contended by defendants in error that said Morse had no authority to sign such petition for said corporation, and it is certain that the court of common pleas based its decision herein upon a finding not given in the record that such authority did not exist. Upon the filing of such petition, and on the same day, the mayor and city council adopted a resolution declaring it necessary to repave said Kansas avenue, agreeably to the prayer of said petition.

On the 8th day of March, the city engineer submitted to said city a detailed estimate of the cost of such improvement, in accordance with the requirements of paragraph 747, General Statutes of 1901. It is urged, on behalf of the defendants in error, that said detailed statement was required by law to have been filed prior to the adoption of said declaratory resolution.

On the 19th day of July, 1898, the council passed an ordinance ascertaining the cost of said repaving, and levying special assessments, the collection of which was enjoined as aforesaid. That ordinance was first published on July 21, but, as many errors appeared in such publication, the city clerk caused the same to be republished on the following day, and entered in his record the fact that it was published in the Kansas City, Kan., Gazette on July 22, 1898. This suit was brought within the thirty days limited by paragraph 766, General Statutes of 1901, if the publication of the ordinance occurred on July 22, but the city, as plaintiff in error, contends that the publication on July 21, although in part erroneous, was legal, and it insists that the action was barred because it was not brought within thirty days thereafter.

Considering these propositions in inverse order, we do not think that, after the publication of July 21 was abandoned and ignored by the city clerk, the city may now be heard to say that such publication caused the special statute of limitations, above cited, to begin to run, and we think this action was brought within the time therein limited. The duty of causing such publication to be made devolved upon the city clerk, and included an obligation on his part to cause such ordinance to be accurately published. When the first attempt to fulfil that duty proved abortive, and he determined that which had been done to be insufficient, in the discharge of the responsibilities resting upon him it was within his province, as a ministerial officer, to decide and act precisely as he did, and the corporation which he represented ought not to be permitted to dispute his authority so to do. (Dill. Mun. Corp. §§ 96, 531.)

The pertinent part of section 747, General Statutes of 1901, cited supra, reads as follows:

"Before the building of any bridge or sidewalk, or any work on any street, or any other kind of work or improvement, shall be commenced by the city council, or under their authority, a detailed estimate of the cost thereof shall be made under oath by the city engineer and submitted to the council; and in all cases where the estimated cost of the contemplated work or improvement amounts to one hundred dollars, sealed proposals for the doing or making thereof shall be invited by advertisement, published by the city clerk in the official newspaper of the city for at least three consecutive days, and the mayor and council shall let the work by contract to the lowest responsible bidder, if there be any such whose bid does not exceed the estimate. If no responsible person shall propose to enter into contract at a price not exceeding the estimated cost, all bids shall be rejected, and the same proceedings as before repeated, until some responsible person shall, by sealed proposal, offer to contract for the work at a price not exceeding the estimated cost. In no case shall the city be liable for anything beyond the estimated cost, or the original contract price for doing such work or making such improvement."

It is quite apparent that the purpose of this section is to prevent fraud and imposition in the letting of contracts, as well as to inhibit the creation of a liability against the city by the mayor and council before the maximum cost of a proposed improvement shall be known. In effect, it is provided that the preliminary things to be done by those who control the financial affairs of a city shall not be completed, so that in due course contractors, or others who perform the actual work of construction, may be permitted to incur expense for which the city is held to respond, until after those empowered to act for such city are fully advised of the extent of the undertaking, and the amount for which the city will become amenable. because thereof.

The insistence of counsel for defendants in error that such detailed statement must be filed before the passage of the declaratory resolution by the council finds no warrant in the letter of the statute, and is not sustained by a consideration of its aims and purposes. Presumably such declaratory resolution will be sufficiently specific to apprise taxpayers of the general nature of the contemplated improvement, and to afford data from which some idea of the probable cost likely to be incurred may be ascertained, and, as the principal matter for consideration by such taxpayers is whether or not the betterment intended is really necessary, a sufficient basis for a protest, such as is permissible under section 730, General Statutes of 1901, is furnished them. Besides, in the case of a city of over 25,000 inhabitants, a petition for paving must be filed, as was done in this case, which petition must "state the width of the paving, and a specific description of the material to be used." (Sec. 730, supra.) We conclude, therefore, that the declaratory resolution of the city council, to which we have referred, was not prematurely passed, and the subsequent proceedings were not rendered defective because the detailed statement had not been filed at the time such resolution was adopted. This construction results in harmonizing the several sections of the statute referred to, and is consonant with their terms and evident intent, and in furtherance of the ends sought to be attained.

The principal matter of controversy in this case is whether the general manager of the Kaw Valley Townsite and Bridge Company had authority to sign...