Hovey v. The Board of Commissioners of Wyandotte County

• Decision Date: 07 March 1896
• Docket Number: 10407
• Citation: 56 Kan. 577,44 P. 17
• Parties: A. B. HOVEY, as Receiver of the Northrup Banking Company, v. THE BOARD OF COMMISSIONERS OF WYANDOTTE COUNTY
• Court: Kansas Supreme Court

44 P. 17

56 Kan. 577

A. B. HOVEY, as Receiver of the Northrup Banking Company, v. THE BOARD OF COMMISSIONERS OF WYANDOTTE COUNTY

No. 10407

Supreme Court of Kansas

March 7, 1896

Decided January, 1896.

Error from Wyandotte District Court.

THIS action was brought in the district court of Wyandotte county by A. B. Hovey, receiver of the Northrup Banking Company against the board of county commissioners of Wyandotte county, to recover $ 31,480 and interest, claimed to be due the banking company on certain written instruments purporting to be obligations of the county, issued by certain road commissioners, in payment for paving Quindaro boulevard. The petition alleges in minute detail that all of the various steps contemplated by chapter 214 of the Laws of 1887 entitled "An act providing for the improvement of county roads," were taken; that a contract for such improvement was let to R. E. Ela and Michael Cahill, who paved the road in accordance with their contract; that the Northrup Banking Company furnished the contractors with all the money expended by them in making such improvement; that it was agreed between the contractors, the bank and the road commissioners that the certificates to be issued in payment for such improvement should be issued directly to the banking company and that this was accordingly done, after the completion and acceptance of the work. It is alleged that the improvement of the road is of permanent value to the county, exceeding the contract price, and that the county now enjoys the full use and benefit thereof. The entire cost is stated' to have been $ 53,147, and it is alleged that a portion of the cost has been collected from the owners of the adjacent property, and that all of the payments that have been made heretofore were from the moneys so collected. The petition shows that the road commissioners met and assessed two-thirds of the cost of the improvements against the adjacent property, in accordance with the statute, and that all of such special assessments were collected, unless by reason of the neglect of the board of commissioners; that there is now in the treasury of the county a large sum of money, the exact amount of which is unknown to the plaintiff, collected on such special assessments for the payment of said certificates, and that the county treasurer refuses to pay the same to the plaintiff. A general demurrer to the petition was interposed in behalf of the county and sustained by the court, and this is the ruling now to be reviewed by this court. The opinion herein was filed March 7, 1896.

Judgment affirmed.

Buchan, Freeman & Porter, for plaintiff in error; Fred E. Buchan, of counsel.

S. C. Miller, county attorney, and Hutchings & Keplinger, for defendant in error.

ALLEN J., MARTIN C, J., concurring., JOHNSTON, J., dissenting.

OPINION

ALLEN, J.:

I. This case was advanced on motion of the defendant, because it was asserted that the county officers desired a speedy determination of the questions involved in the case, and especially because it was said that there was a large amount of money collected from special assessments held in the county treasury, and that the county officers were in doubt as to their duty in disposing of the same and as to the rights of the various parties who might claim an interest therein. The only parties to this action are the receiver, as plaintiff, and the board of county commissioners, as defendant. Although very long and exhaustive briefs discussing the other questions in the case have been filed, no argument is found in them with reference to any fund claimed to be held by the county treasurer. We shall consider the case, so far as we deem it necessary, as it has been discussed by counsel in their briefs. They having ignored this fund, concerning the existence of which the averments of the petition are exceedingly vague and indefinite at best, we shall also disregard it.

The main contention of counsel for the plaintiff in error is that the decision in the case of Comm'rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 34 P. 416, in which chapter 214 of the Laws of 1887 was held unconstitutional and invalid, is wrong. It is very earnestly insisted that the plaintiff in this case has never had a hearing in this court on the question of the validity of the law; that very large interests are involved; and that the court should again carefully reconsider this question. Every decision of an important question of law must necessarily affect the interests of all persons whose rights must be determined by the same rule, and this without their having had a hearing in the first instance. For this, as well as other reasons, it is of the utmost importance that every rule announced should be sound. It cannot be urged with any truthfulness that the question as to the validity of this road-improvement law was hastily disposed of, without due consideration. It was repeatedly argued before the court in numerous cases, and the decision in the case cited was reached with an understanding of the disastrous consequences that must necessarily follow to individuals not parties to that litigation. After the case was decided in this court, the circuit court of the United States for the district of Kansas, in the case of National Bank v. Board of Commissioners, 61 F. 436, arrived at the same conclusion, and also declared the law unconstitutional. On error to the circuit court of appeals, the judgment was affirmed, though on other grounds. (68 F. 878.) The writer is entirely satisfied with the result reached in the Abbott case, and the court is disinclined to overrule it after it has been followed by the federal court.

II. It is contended that,...