Gilmore v. Hentig

• Decision Date: 06 February 1885
• Citation: 5 P. 781,33 Kan. 156
• Court: Kansas Supreme Court
• Parties: GEORGE T. GILMORE, County Clerk, &c., et al., v. F. G. HENTIG, et al

5 P. 781

33 Kan. 156

GEORGE T. GILMORE, County Clerk, &c., et al., v. F. G. HENTIG, et al

Supreme Court of Kansas

February 6, 1885

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error from Shawnee District Court.

ACTION brought March 11, 1884, by F. G. Hentig and others against Geo. T. Gilmore, as county clerk, and Bradford Miller, as county treasurer of Shawnee county, and the City of Topeka to perpetually enjoin the defendants from collecting certain taxes levied by the city of Topeka upon the lots of the plaintiffs in said city. The action was tried by the court without a jury, at the April Term, 1884, and the court made certain special findings of fact and conclusions of law as follows:

FINDINGS OF FACT.

1. That the defendant, the city of Topeka, is a duly-organized city of the first class, situated in Shawnee county, Kansas; that the defendant, George T. Gilmore, was at the time this action was brought the county clerk of said Shawnee county; that the defendant, Bradford Miller, was at the time this action was brought, and is now, the county treasurer of said Shawnee county; that said plaintiffs respectively own the real estate situated in said city of Topeka, alleged in said petition to be respectively owned by them.

2. That prior to the commencement of the building of any of the sewers hereinafter mentioned, the mayor and councilmen of the city of Topeka, deeming it necessary to provide said city with a system of sewerage, directed the city engineer of said city to prepare the plan of a system by which the whole of the city might be drained; that pursuant to said direction, the said city engineer did so prepare the plan of a general system of sewerage as aforesaid, by which plan every lot and parcel of ground in said city could be drained; that by said general plan the ground included within the limits of said city was divided into sub-districts having reference to the topography of the ground; and that by said general plan district No. 1 and district No. 2, hereinafter mentioned, were made two sub-districts. Said general plan was submitted to said mayor and councilmen, and by them approved and placed on file with the maps and profiles of said general plan. There were also at the same time submitted plans and specifications in detail for the doing of said work, which said plans and specifications were also approved by the mayor and council, and filed.

3. That afterward, said mayor and councilmen, deeming it desirable to construct and put in a portion of said sewers contained in said district No. 1, caused an estimate to be made by the city engineer of said city of the cost of putting in that portion of said sewers then deemed advisable to be constructed, which said estimate was as follows:

[Here follows an estimate made by the city engineer.]

Said estimate is the only estimate filed by the city engineer for the construction of said sewers, and was made on credit basis, payable in scrip, and was fifteen per cent. higher than the estimated cost of said work in money, which said estimate has reference to and is the estimate upon which the contract for said work was let and said work done. Said estimate was duly approved by said mayor and councilmen, and filed June 5, 1882.

Afterward the mayor and councilmen of said city advertised for proposals for the doing of said work, and entered into a contract with the lowest bidder for the doing of said work, and said contractor constructed said work under said contract; and after the same was completed, said work was accepted by the said mayor and council.

[Numbers 4 and 5 of the special findings of fact contain simply statements of other estimates made with respect to sewer district No. 2, and are in form and also in words, except merely the estimates themselves, the same as special finding of fact No. 3; and the estimates were filed respectively on August 29, 1882, and March 12, 1883.]

6. All of said sewers, as provided for by said general system of sewerage, to be built in said districts Nos. 1 and 2, were not included in any of said contracts, and have not yet been completed; and said system of sewerage in said districts Nos. 1 and 2 has not yet been fully completed.

7. During the construction, and upon the completion of said parts of said work according to the contracts hereinbefore mentioned, the said city of Topeka issued to said contractor certain scrip or warrants for the amount of said contracts respectively, which said scrip was signed by the mayor and the clerk, and was drawn on the city treasurer, ordering him to pay said contractor the amount of the said contract, payable at such time in the future as the said mayor and council then supposed a tax hereinafter mentioned could be levied and collected for that purpose. Said scrip was all dated prior to August 22, 1883, and was made payable as follows: One-half January 1, 1884, one-fourth July 1, 1884, and one-fourth October 1, 1884. Said scrip, issued during the construction of said work, was issued upon estimates of the work then done, made by the city engineer, and upon the completion of said work, scrip for the balance of the contract price was issued.

8. That afterward, the mayor and councilmen of said city duly enacted the following ordinance, (said ordinance is attached to plaintiff's petition, marked "Exhibit B," and is hereby referred to and made a part of this finding of fact as though copied in full herein,) which ordinance was duly approved, and duly and legally published September 8, 1883.

9. That afterward, on the 16th day of October, 1883, for the purpose of paying the costs and expenses of constructing and putting in said sewers as aforesaid constructed and put in, the said mayor and councilmen of said city duly levied and assessed a tax against the lots and pieces of ground contained in said districts, in an amount sufficient to pay the costs and expenses of the building and putting in of said sewers, and no more. The costs and expenses of putting in said sewers in said district No. 1 were assessed and levied against the lots and pieces of ground contained in said district No. 1. The cost and expense of putting in the sewers constructed in said district No. 2 were assessed against the lots and pieces of ground contained in said district No. 2. No assessment was made upon any property in said district No. 1, except to pay for sewers which had actually been built in said district, but the whole cost of building said sewers in said district was assessed upon the property in that district. No assessment was made upon the property in said district No. 2, except to pay for sewers that were built in said district No. 2, but the whole cost of sewers built in said district No. 2 was assessed upon the property in said district. Each lot and piece of ground was assessed for its due proportion of the whole tax assessed against the property in the district; said proportion being determined by said valuation. The levy of said tax was made by the ordinance hereinbefore set out in finding No. 8, as by reference to said ordinance will more fully appear, and by another ordinance approved October 6, 1883, and published October 16, 1883; which said tax was duly certified to by the clerk of said city of Topeka, to George T. Gilmore, as county clerk of Shawnee county, Kansas, in which said city is located, and was by said county clerk placed on the tax-roll of said county for collection.

10. Before said levy of assessments was made, and with a view of making said assessment, the mayor and council of said city duly appointed three appraisers, who thereupon took the following oath:

State of Kansas, county of Shawnee, city of Topeka, ss.--Albert Parker, N. L. Gage, and A. V. Auter, all of lawful age, being first duly sworn, say: That each of them are householders of the city of Topeka, Shawnee county, state of Kansas; that each of them will faithfully and impartially discharge their duties as appraisers, for the purpose to assess the valuation of lots and pieces of ground contained in the respective sewer districts, without the improvements thereon, as per ordinance No. 497, approved September 4, 1883. So help us God.

(Signed)

ALBERT PARKER.

N. L. GAGE.

A. V. AUTER.

Subscribed and sworn to before me, this 5th day of September, 1883.

[Seal.]

GEO. TAUBER, City Clerk.

And they thereupon proceeded to appraise the lots and pieces of ground situated in said districts Nos. 1 and 2. Said appraisers valued or appraised each and every piece of ground situated in said districts Nos. 1 and 2, regardless of any improvements thereon, making their appraisement according to the actual value of each and every lot or piece of ground as the same would be without any improvements thereon, and said assessments were made upon the basis of said valuation. After said appraisement was returned by said appraisers and filed with the said clerk of said city, the mayor and council caused a notice, of which the following is a copy:

[First published -- Daily State Journal, September 22, 1883. Second publication -- Daily State Journal, September 24, 1883.]

OFFICIAL NOTICE.

MAYOR'S OFFICE, CITY OF TOPEKA.

There will be a special meeting of the city council on Monday, September 24, 1883, at 8 o'clock P. M., for the purpose of hearing any complaint that may be made as to the valuation assessed by the appraisers of any lots or pieces of ground abutting on the several alleys upon and along which paving has been done by the city of Topeka, to wit:

In the alley bounded on the north by Fifth street east, by Kansas avenue on the east, by Sixth avenue on the south, and Jackson street on the west.

In the alley bounded on the north by Sixth avenue east, on the south by...