Edson v. The City of Olathe

• Decision Date: 11 December 1909
• Docket Number: 16,202
• Citation: 81 Kan. 328,105 P. 521
• Parties: J. A. EDSON, as Receiver, etc., Appellant, v. THE CITY OF OLATHE, Appellee
• Court: Kansas Supreme Court

105 P. 521

81 Kan. 328

J. A. EDSON, as Receiver, etc., Appellant, v. THE CITY OF OLATHE, Appellee

No. 16,202

Supreme Court of Kansas

December 11, 1909

Decided July, 1909.

Appeal from Johnson district court; WINFIELD H. SHELDON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

DAMAGES--Liability of a City--Repeal of Franchise Ordinance. A city is not liable in damages for the repeal of a street-railway-franchise ordinance which does not engage the city in any private proprietary capacity, nor for the conduct of its officers in publishing and subsequently enforcing the repealing ordinance.

A. F Hunt, jr., F. R. Ogg, S.D. Scott, and S. T. Seaton, for the appellant.

C. L. Randall, city attorney, for the appellee.

OPINION

BURCH, J.:

The railway company sued the city for damages following the repeal of an ordinance granting the use of the streets of the city for the construction and operation of a street and interurban railway. A demurrer was sustained to the petition, and the railway company, by its receiver, appeals.

After alleging the passage of the original ordinance, acceptance of its terms, and compliance with its conditions on the part of the plaintiff, the petition proceeds as follows:

"The plaintiff further avers that notwithstanding its rights in the premises the said defendant refused to permit said plaintiff to enter said city for the purpose of constructing and operating its line of railway as provided for in said ordinance, and to enjoy the franchise, rights and privileges by said ordinance conferred, and therein did on the 25th day of June, 1906, enact a certain ordinance repealing the ordinance hereinbefore mentioned of May 21, 1906, and from thence on did refuse to allow the said plaintiff the enjoyment of its aforesaid franchise, and contract rights and privileges, and did refuse to approve plaintiff's bonds, plans and specifications and repudiated said contract, a copy of which ordinance of repeal is hereto attached and made a part hereof. Which said repealing ordinance was duly published in the Olathe Republican-Tribune, the official paper of said city."

The franchise ordinance designated the streets to be used, covered fully the subjects of construction, maintenance and operation, and prescribed many regulations intended to conserve the right of the general public to use the streets and in other respects to protect and promote the public welfare. It required that connection be made with the street railway system of Kansas City, Mo. Some of the proprietary rights of the city which would necessarily be affected by the exercise of the privileges granted were protected, but no independent, private, proprietary corporate object or advantage was sought to be obtained by means of the franchise, and the city assumed no obligation of a private proprietary nature. A right of repeal under certain circumstances was reserved, the railway company was required to give bond for the performance of conditions imposed and was required to file with the city clerk plans and specifications of construction work, to be approved by the city council before construction commenced.

The damages claimed were cost of condemnation proceedings, attorney fees, loss of profits, depreciation in the market value of bonds at the time on sale, and some other items.

Evidently the petition was prepared on the theory that the repeal of the franchise ordinance, and the consequent damage, created a cause of action against the city. The general statement that the city refused to permit the plaintiff to enter the city is limited by the specification as to how the refusal was accomplished--"and therein did on the 25th day of June, 1906, enact a certain ordinance repealing," etc., and the repealing ordinance was of course the act of obstruction and repudiation actually relied on. In the principal brief the cause is argued as if the repeal of the franchise ordinance occasioned the damage and furnished the foundation of the action. An attempt is made to fortify the argument in a reply brief, but in an addendum to the reply brief the position is abandoned altogether. The plaintiff now relies on the so-called ministerial act of publishing the repealing ordinance, the subsequent refusal of the city to approve its bonds, plans and specifications, the subsequent refusal to allow the plaintiff to enjoy its franchise, and the subsequent repudiation of the contract. These points will be noticed as if the theory of the petition really embraced them.

The statute requires all ordinances of cities of the second class, except those for the mere appropriation of money, to be published before they become effective. Enactment and publication combine to make the law. They constitute separate stages of the process whereby municipal law comes into being, and whenever city officials act in a public, political, governmental capacity for the passage of an ordinance they act in the same capacity for the publication of it. City ordinances relating to matters of general public concern have the force and effect of law. (Yount v. Denning, 52 Kan. 629, 636, 35 P. 207.) The city is the delegated agent of the sovereignty to establish the law in the municipal territory, and the agency lasts until the end is attained. This is not a case involving simply the ministerial execution of work laid out by an ordinance after legislative discretion has ended. (The City of Leavenworth v. Casey, McCahon, 124, 1 Kan. [Dassler's ed.] 544, 550; Bowden v. Kansas City, 69 Kan. 587, 590, 77 P. 573.) While legislative discretion over the contents of the ordinance may have ended with the proceedings in the council chamber, the governmental function of promulgating public law did not end until the ordinance was published in due form. Therefore the city is under no more liability for the conduct of its officers in publishing an ordinance, whereby it acquires the quality of law, than it is for the conduct of the same officers in considering the ordinance section by section or in voting upon it.

Concerning the other matters supposed to entail liability--refusal to approve bonds, etc., after the repeal, re-repudiation of the franchise and re-refusal to permit it to be enjoyed--the question is, In what capacity was the city acting? If it acted as an agent of the sovereignty upon a subject of general public concern, dissociated from any private, proprietary corporate right, it shares the sovereign's immunity from suit.

In granting the franchise the city acted in a purely governmental capacity. It sought to promote the general welfare, and nothing else. It had no private, proprietary end in view, obtained no advantages of that character, and assumed no obligations of that kind. The repealing ordinance dealt with the same subject--the general welfare--and nothing else. The subsequent measures taken by the city pursuant to the repealing ordinance and by way of its enforcement belong to the same category. They were purely governmental measures taken by the city as the agent of the state for the promotion of the public good, and had no private corporate aspect whatever. What the city officials did was to prevent the streets from being invaded and permanently occupied by the...