City v. Gray

• Decision Date: 07 July 1900
• Docket Number: 11,692
• Parties: THE CITY OF KANSAS CITY et al. v. R. M. GRAY et al
• Court: Kansas Supreme Court

61 P. 746

62 Kan. 198

THE CITY OF KANSAS CITY et al. v. R. M. GRAY et al

No. 11,692

Supreme Court of Kansas

July 7, 1900

Decided July, 1900.

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

STATEMENT.

THIS was an action commenced in the court of common pleas of Wyandotte county by R. M. Gray and fourteen others, owners of property abutting on Ann avenue, in Kansas City, Kan against the city, the city clerk, county clerk, and county treasurer, to enjoin the collection of certain special assessments levied against their real estate for the purpose of paving Ann avenue from Sixth to Tenth streets. A petition regular in form and with proper certificates, was presented to the mayor and council under the provisions of section 171 of chapter 32 of the General Statutes of 1897. Property having a frontage on the avenue was signed for thus "The city of Kansas City, Kan., R. L. Marshman, mayor. 400 feet." Said property was, in fact, public ground, known as Huron Place, the fee title of which was in the county. Without this 400 feet, the petition would have been insufficient to confer jurisdiction on the mayor and council to order the improvement.

It was alleged in the petition on which this case was tried that the petition to the mayor and council was not signed by the owners of a majority of the front feet owned by residents of said city fronting or abutting on Ann avenue from Sixth to Tenth streets; that the same was invalid and insufficient to confer jurisdiction on the mayor and councilmen to make said improvement, and that the estimate was not in detail, as required by law. The city pleaded, among other things, the thirty days' statute of limitations.

Under the agreed statement of facts, the only questions submitted to the trial court related to the sufficiency of the petition of property owners asking for said paving, and the validity of the estimate made by the city engineer; and the controversy was restricted to these two propositions. The court below sustained the contention of defendants in error, and a decree was entered perpetually enjoining the collection of said special-assessment taxes levied for paving and charged against the real estate of the plaintiffs below. The city has brought the case here for review.

Judgment reversed.

T. A. Pollock, and F. D. Hutchings, for plaintiffs in error.

E. S. Earhart, and J. O. Rankin, for defendants in error.

SMITH J. JOHNSTON, J., concurring. DOSTER, C. J. dissenting.

OPINION

SMITH, J.:

There is nothing in the record before us which distinguishes this case from that of Kansas City v. Kimball, 60 Kan. 224, 56 P. 78. So far as the petition to the mayor and council is concerned, it shows a conformity to the provisions of section 171 of chapter 32, General Statutes of 1897. There is a certificate by the city engineer, to which officer we presume the petition was submitted, stating that the same is signed by the owners of a majority of the front feet owned by residents abutting on Ann avenue between Sixth and Tenth streets, and a further certificate by the city attorney showing that the petition is signed by the parties having a legal right to sign for the property set opposite their names as shown by abstracts furnished by the city abstracters. These certificates, with the petition, were before the council when the prayer of the property owners was granted. The certificate of the engineer shows the total number of front feet owned by resident property owners to be 3520; total number signing, 1982.50; majority, 445. There is error in this calculation, in that the majority should be 222.50.

The principal attack made on the validity of the petition for paving is based on the fact that Huron Place, having a frontage of 400 feet on the avenue to be paved, was dedicated to public purposes on September 28, 1859, and that the mayor, representing the city, was without authority to join with the other petitioners. The 400 feet signed for by the mayor does not appear upon the face of the petition to be the property known as Huron Place. This fact was shown by evidence aliunde the petition to the council. We are concerned here only with the question whether the petition to the council praying for the improvement contained evidence on its face showing that it did not conform to the statute requiring that the same be signed by the resident owners of a majority of the feet fronting and abutting on said street to be improved.

In Kansas City v. Kimball, supra, Mr. Chief Justice Doster, speaking for the court, said:

"The defendants in error not having commenced their action within the statutory period, the remaining questions are easy of disposal. The law did not require the petition to the mayor and council for the making of the improvements in question to show upon its face that it was signed by the resident owners of a majority of the front feet to be paved. (City of Argentine v. Simmons, 54 Kan. 699, 39 P. 181.) The fact, if it were such, that the resident owners of a majority of the front feet did not in reality sign the petition did not appear upon it or upon other proceedings. Upon the face of the petition and other proceedings nonconformity to the law did not appear. In such cases the validity of the assessment cannot be challenged beyond the limited period allowed by the statute for so doing. (Doran v. Barnes, 54 Kan. 238, 38 P. 300.)"

It is true that if the 400 feet frontage of Huron Place be deducted the petition lacks 177.50 feet of containing a majority of the front feet owned by residents of the city, but inquiry into this question cannot be made after the statute of limitations has barred the right to attack the validity of the assessment. It would be a matter of doubt if the petition for the improvement showed on its face that the property represented by the mayor was in fact Huron Place, the legal title to which is in the county, whether jurisdiction had been conferred on the mayor and council to order the paving done and contract therefor at the expense of the property owners. Conforming, however, to the rule laid down in the case quoted from, we are not at liberty to hold that the 400 feet appearing thereon in the name of the city is the tract of land known as Huron Place, and that the mayor was without power to sign therefor. We must look to the face of the petition.

A city can take and hold a fee-simple title to real estate when the same is necessary for municipal purposes, and the petition to the council asking for this improvement does not disclose that the property signed for by the mayor was not so held. In Doran v. Barnes, ...