City v. Kimball

• Decision Date: 11 February 1899
• Docket Number: 11083
• Citation: 60 Kan. 224,56 P. 78
• Parties: THE CITY OF KANSAS CITY et al. v. E. P. KIMBALL et al
• Court: Kansas Supreme Court

56 P. 78

60 Kan. 224

THE CITY OF KANSAS CITY et al. v. E. P. KIMBALL et al

No. 11083

Supreme Court of Kansas

February 11, 1899

Decided January, 1899.

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

Judgment reversed, with directions.

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

Angevine & Cubbison, for defendants in error.

OPINION

DOSTER, C. J.:

This was an action brought by E. P. Kimball and others, the defendants in error, against the city of Kansas City and others, the plaintiffs in error, to enjoin the collection of certain assessments levied against the real estate of the defendants in error to pay for curbing and paving a certain portion of Waverly avenue in said city. The proceedings to charge the real estate in question with the lien of the assessments were had under chapter 73, Laws of 1891, as amended by chapter 274, Laws of 1895. (Gen. Stat. 1897, ch. 32, §§ 171, 172.) The grounds of the application for the injunction were that the petition to the mayor and council asking for the making of the improvement in question was not in fact "signed by the resident owners of a majority of the feet fronting or abutting upon such street to be improved," as required by section 6 of the act of 1891, as amended by section 1 of the act of 1895; nor did it, when presented to and acted upon by the mayor and council, purport to be so signed by such requisite number of qualified persons. Evidence upon both of these questions was introduced in the court below, upon the conclusion of which a general finding was made that the assessments were void and did not constitute a lien upon the lots against which they were levied. The record does not show whether this finding was made upon the ground that the petition was not in fact signed by the requisite number of resident owners, or upon the ground that it did not upon its face purport to be so signed. A perpetual injunction against the collection of the assessments was granted, and from the order therefor proceedings in error have been prosecuted to this court. The application for injunction was not made until more than thirty days after the amounts due on each lot liable for the assessments had been ascertained in accordance with the statutes above cited, and the plaintiffs in error contend that because thereof the action cannot be maintained. This contention is based upon the provision of limitation found in chapter 101, Laws of 1887 (Gen. Stat. 1889, P 590, Gen. Stat. 1897, ch. 32, §§ 209-217), which reads as follows:

"No suit to set aside the said special assessments, or to enjoin the making of the same, shall be brought nor any defense to the validity thereof be allowed after the expiration of thirty days from the time the amount due on each lot or piece of ground liable for such assessment is ascertained."

To this the defendants in error reply that the act of 1887 was repealed by implication by the acts of 1891 and 1895. These later acts relate to the same general subject as that of 1887, to wit, improvements of the streets, avenues, alleys, etc., of cities of the first class, and the making of assessments to pay therefor. The contention of the defendants in error is that they contain new and different provisions from those of the earlier law, but relating to the same matters and covering the whole of the same general ground, and are, therefore, a substitute for the earlier enactment, and in consequence work a repeal by implication of all its provisions.

The rule undoubtedly is that when a later act covers the entire subject-matter of an earlier one and substitutes therefor new and repugnant provisions, they will be deemed to take the place of those of the former law, and will therefore accomplish its repeal by implication. (Oil Co. v Angevine, ante, p. 167, 60 Kan. 167, 55 P. 879, and cases cited.) The acts of 1891 and 1895 do not, however, cover the entire subject-matter of the act of 1887; that is, they do not contain substituted provisions for all of those contained in the earlier law. They contain no provision of limitation such as the one above quoted from the act of 1887, and the material inquiry therefore is, Are the later enactments to be regarded as substitutes for all of the act of 1887, or only for so much of it as is covered by the new and repugnant...