Horner v. The City of Atchison

• Decision Date: 12 December 1914
• Docket Number: 19,084
• Citation: 144 P. 1010,93 Kan. 557
• Parties: HARRY HORNER, Appellant, v. THE CITY OF ATCHISON, Appellee
• Court: Kansas Supreme Court

144 P. 1010

93 Kan. 557

HARRY HORNER, Appellant, v. THE CITY OF ATCHISON, Appellee

No. 19,084

Supreme Court of Kansas

December 12, 1914

Decided July, 1914.

Appeal from Atchison district court; WILLIAM A. JACKSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PERSONAL INJURIES--Collapse of Bridge--Bridge Outside City Limits--Corporate Organization of City Can Not be Attacked Collaterally. The plaintiff sued the city for damages for personal injuries resulting from the collapse of a bridge. The defense was that the bridge was not in the city. The proof was that upon taking in an addition to the city, not adjacent to the bridge, the bridge had been left outside the city limits by an ordinance changing and defining the boundaries of the city. Held, the plaintiff could not make a collateral attack upon the corporate organization of the city by questioning the validity of the ordinance.

2. SAME--Contributing to Maintenance of Bridge--City Not Liable on Grounds of Estoppel and Assumed Control. Although the bridge was carried on the county records as bridge number 81 on road number 59, it lay but a few feet, or at most a few yards, beyond the city limits. It was of great convenience to the inhabitants of the city and the city officials on occasions inspected it and contributed to the expense of rebuilding and repairing it. Held, the city was not responsible for the condition of the bridge, on the grounds of estoppel and assumed control.

J. L. Berry, C. S. Hull, both of Atchison, and J. G. Waters, of Topeka, for the appellant.

Walter E. Brown, of Atchison, for the appellee.

OPINION

BURCH, J.

The plaintiff sued the city for damages for personal injuries resulting from the collapse of a bridge. The city defended on the ground that the bridge was not within the city limits. The defendant prevailed and the plaintiff appeals.

The bridge spanned White Clay creek and was carried on the county records as bridge number 81 on road number 59. According to the terms of an ordinance passed in 1890, defining the boundaries of the city, a street designated as Thirteenth street formed the western boundary of the city at the locality in question. Thirteenth street extends north and south. A government half-section line runs north and south through its central portion, and the bridge stood upon that part of the street which lies west of the half-section line. In August, 1905, an ordinance was passed taking into the city an addition not adjacent to the bridge and "changing and defining the corporate limits and boundaries of said city." This ordinance established the western boundary of the city at the half-section line and consequently left the bridge lying outside the city limits. The incorporation of the addition necessarily effected a change in the city limits. Upon such change being made it became the duty of the mayor and council to declare by ordinance the entire boundary of the city. (Gen. Stat. 1909, § 871.) The corporate limits thus established in 1905 have not since been changed by ordinance.

In order to show that the limits of the city did not extend far enough westward to include the bridge, the defendant introduced in evidence the ordinance of 1905. Presumptively the ordinance was valid, the existence of such facts as were essential to its validity was to be presumed, and the ordinance was sufficient to make a prima facie case in favor of the defendant, even if its corporate organization had been attacked directly by the state in an action brought for that purpose. (The State, ex rel., v. City of Atchison, 92 Kan. 431, 140 P. 873.) The plaintiff asserts, however, that the ordinance was void. The defendant replies that it cannot be required to litigate that subject with the plaintiff, either upon an issue of law or an issue of fact raised collaterally to a personal-injury suit. The defendant's position is supported by the following decisions of this court: Topeka v. Dwyer, 70 Kan. 244, 78 P. 417; Railway Co. v. Lyon County, 72 Kan. 16, 84 P. 1031; Chaves v. Atchison, 77 Kan. 176, 93 P. 624; Gardner v. Benn, 81 Kan. 442, 105 P. 435; Railroad Co. v. Leavenworth County, 89 Kan. 72, 77, 130 P. 855; and Price v. City of McPherson, 92 Kan. 82, 85, 139 P. 1162.

The plaintiff says the cases cited were all cases in which territory had been annexed and corporate boundaries enlarged, while in this case the city undertook to exclude territory from its corporate limits. The distinction does not render the principle involved inapplicable. It was pointed out in the Dwyer case, and in others following it, that the enlargement of corporate limits to include new territory is to that extent a reorganization, and an attack upon reorganization involves corporate integrity the same as if original organization were questioned. A reduction of corporate limits by the exclusion of territory is to that extent a reorganization, and an attack upon reorganization effected in that way involves corporate integrity the same as if original organization were assailed.

The plaintiff says the ordinance of 1905 was enacted without color of law and consequently that it should be disregarded by any court which encounters it. This statement does not sound the controversy. The question here is whether the bridge was outside the corporate boundaries of the city. The proof shows that some five years before the collapse of the bridge, which occurred in September, 1910, the city limits had been contracted under color of an ordinance duly passed and published and acquiesced in by the public and by the law officers of the state. The ordinance may be valid or invalid, but it furnishes color of law for the present corporate organization (Railway Co. v. Lyon County, supra), and for reasons of public policy the plaintiff can not disorganize the city by a collateral attack made in this suit.

The plaintiff says the ordinance held to afford color of law in the Lyon county case had back of it a statute permitting the city to annex territory, while the ordinance involved in this case had back of it no statute permitting the city to exclude territory. The ordinance in this case had back of it a statute providing a method by which territory might be excluded from the city, and requiring the city whose boundaries had been changed by this method to record the change by ordinance. (Laws 1905, ch. 519, § 7, Gen. Stat. 1909, § 9719.) The plaintiff says that this law is unconstitutional, and that if it were constitutional the steps preliminary to an ordinance recording a change in boundary resulting from the exclusion of territory had not been taken. At the time the ordinance of 1905 was passed the validity of the statute of 1905 had not been questioned. Consequently it furnished color of law for the passage of the ordinance. The existence of the preliminary facts will be assumed, if necessary, and the plaintiff is not allowed to contest either the assumption or the validity of the statute, for reasons stated at length in the Dwyer case, supra:

"The rule rests wholly in expediency, and operates in defiance of other legal doctrines. The consequences to society of allowing private collateral attacks upon the existence of cities would be intolerable, and hence courts are concerned...