Hentig v. Gilmore

• Decision Date: 07 March 1885
• Citation: 33 Kan. 234,6 P. 304
• Court: Kansas Supreme Court
• Parties: F. G. HENTIG, et al., v. GEO. T. GILMORE, County Clerk, &c

6 P. 304

33 Kan. 234

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

Supreme Court of Kansas

March 7, 1885

[Copyrighted Material Omitted]

Error from Shawnee District Court.

ACTION brought on March 11, 1884, by F. G. Hentig and others against George T. Gilmore, county clerk, Bradford Miller, county treasurer, and the City of Topeka, to perpetually enjoin the defendants from collecting certain special taxes levied by the city of Topeka upon the lots of the plaintiffs to pay for grading and paving certain alleys in said city. The action was tried by the court without a jury, and the court made certain special findings of fact and conclusions of law, and rendered judgment upon such findings and conclusions in favor of the defendants and against the plaintiffs for costs. They bring the case to this court for review. The findings and conclusions read as follows:

"First. That the defendant, the city of Topeka, was, in the years 1881, 1882, and 1883, a duly-organized city of the first class, situated in the county of Shawnee, in the state of Kansas; that the defendant George T. Gilmore was, at the time this action was brought, the county clerk of said Shawnee county; and the defendant Bradford Miller was, at the time this action was brought, and is now, the county treasurer of said county; that said plaintiffs own respectively the real estate situated in said city of Topeka, alleged in the plaintiffs' petition to be respectively owned by them.

"Second. That prior to the commencement of the paving of the alleys hereinafter mentioned, the mayor and councilmen of the city of Topeka, deeming such work of paving necessary, directed the city engineer to prepare and submit a detailed estimate of the cost, and nature and character of the pavement to be used in paving said alleys; that, pursuant to said direction the said city engineer did, on the 21st day of May, 1883 submit to the city council such estimates, which estimates are in words and figures as follows, to wit:

'Estimate of expense for grading and paving alleys between Seventh street and Eighth avenue, and between Kansas avenue and Quincy street, as follows:

For excavating 850 yards, at 30 cents per yard

$ 255

For paving 14,000 feet, at 18 cents per foot

2,520

$ 2,775

'J. HUNTOON, City Engineer.

'Approved by council, May 21st, 1883.--GEO. TAUBER, City Clerk.

'Estimate of cost of paving alley running east and west between Fifth street and Sixth street, and between Kansas avenue and Quincy street, viz.:

3,300 feet of paving, at 18 cents per foot

$ 594 00

123 cubic yards excavating, at 25 cents per yard

28 75

$ 622 75

'J. HUNTOON.

'The within estimate approved by council, May 7, 1883.--GEORGE TAUBER, City Clerk.'

"And this was the only estimate filed, and the one under which the work was done.

"Third. That afterward, to wit, on the day of , 1883, the said mayor and city council duly advertised for bids for the construction of said work, and in pursuance of such invitation and advertisement, bids were duly submitted to and were accepted by said mayor and city council, for the paving of the alleys between Fifth and Sixth streets, and the alleys between Seventh and Eighth streets, and which work and labor was afterward duly performed by said contractors in accordance with their said contract, and duly accepted by said city. Said contracts were let to the lowest responsible bidders, and the contracts for said works were in writing, each of said contracts being for the specific work provided for in the estimate, and upon which said contract was based.

"Fourth. That afterward, and upon the completion of said work, the same was duly accepted by the mayor and city council of said city, and scrip or warrants issued to said contractors according to the terms and conditions of said contracts.

"Fifth. That afterward, and on the day of September, 1883, for the purpose of paying the cost and expense of doing such work, the mayor and city council of said city of Topeka first caused the lots and pieces of ground abutting on said alleys to be appraised by three disinterested appraisers, duly appointed for that purpose; and did by ordinance duly levy and assess according to law the taxes against the lots and pieces of ground abutting on said alleys, to an amount sufficient to pay said cost and expense, but no more--that is to say, upon the lots and pieces of ground abutting on said alleys, situated between Seventh and Eighth streets, for the full cost of paving the alley in said block; and upon the lots and pieces of ground abutting on said alley between Sixth and Seventh streets, for the full cost and expense of said paving in said block; and on the lots and pieces of ground abutting on the alley between Fifth and Sixth streets, for the full cost of said paving in said alley in said block; which taxes were duly certified by the clerk of said city to the defendant George T. Gilmore, as county clerk of Shawnee county, Kansas, and were by him placed upon the tax-roll of said county for collection, by defendant Miller, as county treasurer of said Shawnee count.

"Sixth. That after said appraisement was returned by said appraisers, and filed with the city clerk of said city, the mayor and city council caused a notice, of which the following is a copy, to wit:

'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 complaints 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 Seventh street, by Kansas avenue on the east, and Jackson street on the west.

'In the alley bounded on the north by Seventh street, on the east by Quincy street, on the south by Eighth avenue east, on the west by Kansas avenue.

'Witness my official hand and seal of the city of Topeka, hereto attached, this 22d day of September, 1883.

(Signed) M. HEERY,

President of the Council, Acting Mayor.

Attest: G. TAUBER, City Clerk.'

To be published in the official paper of said city, notifying property-owners in said city whose property was subject to taxation and assessment for the payment of said work, that such appraisement and valuation of said property had been made, with the view of levying a tax thereon to pay for the paving of said alleys, and that there would be a meeting of said city council on the day of , 1883, at which meeting they could appear to show cause why said appraisement and valuation was not just and equitable; and at said meeting, there being no objection made to said appraisement and valuation, said mayor and council approved and ratified said appraisement and valuation, and by ordinance levied thereon the tax as aforesaid.

"Seventh. There was no money in the city treasury at the time said work was undertaken, or afterward, with which to pay for said work, and no money was set apart in the treasury of said city by ordinance or otherwise, before or at the time said work was undertaken, to pay for the same.

"Eighth. That the material used in paving said alleys was good, and the work and labor performed was done in a good and workmanlike manner.

"Ninth. That after the completion of said work, and before the levy of the tax to pay for the same, the mayor and councilmen of said city appointed Albert Parker, N. L. Gage, and A. V. Auter, three resident disinterested householders of said city, to make an appraisement and valuation of said lots and pieces of ground subject to taxation for the payment of such grading and paving of said alleys, who thereupon took and subscribed to an oath and affidavit in words and figures as follows, to wit:

'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; that they will faithfully and impartially discharge their duties as appraisers for the purpose of assessing the valuation of lots and pieces of ground abutting on certain alleys in the city of Topeka, Kansas, upon and along which paving has been done by the city of Topeka, regardless of improvements on all such lots and pieces of ground. So help us God.

'[Signed] ALBERT PARKER.

N. L. GAGE.

A. V. AUTER

'Subscribed and sworn to before me, this fifth day of September, 1883.

'[Signed] GEORGE TAUBER, City Clerk.'

CONCLUSIONS OF LAW.

"The court finds as conclusions of law, as follows:

"First. That the estimates submitted by the city engineer, and approved by the mayor and council, were in substantial conformity with the law, and therefore valid.

"Second. That the contracts entered into by the city and the contractors for the grading and paving of said alleys were in substantial conformity with the law, and therefore valid.

"Third. That the appraisement and valuation of the property for the purpose of levying a tax thereon for the payment of said grading and paving of said alleys were in substantial compliance with the law, and therefore valid.

"Fourth. That the proceedings of the mayor and city council in the assessment and levy of the tax upon said property for the payment of the grading and paving of said alleys was a substantial compliance with the law, and therefore valid and legal.

"Fifth. That the plaintiffs are not entitled to the relief prayed for in this action, and judgment will be for the defendants."

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