Huling v. City of Topeka

• Decision Date: 08 November 1890
• Citation: 24 P. 1110,44 Kan. 577
• Parties: ALDEN S. HULING v. THE CITY OF TOPEKA
• Court: Kansas Supreme Court

24 P. 1110

44 Kan. 577

ALDEN S. HULING v. THE CITY OF TOPEKA

Supreme Court of Kansas

November 8, 1890

Error from Shawnee District Court.

THE opinion states the case.

Judgment affirmed.

Alden S. Huling, plaintiff in error, for himself.

S. B Isenhart, city attorney, for defendant in error.

GREEN C. All the Justices concurring.

OPINION

GREEN C.:

On the 9th day of December, 1889, the city council of Topeka passed an ordinance annexing a large number of platted and unplatted tracts of land to the city; this ordinance was approved by the mayor on the 10th day of December, and duly published as required by law. On the 15th day of January, 1890, the mayor of the city presented the ordinance, accompanied with the certificate of the city clerk and affidavit of the printer, showing that said ordinance had been passed and published, to the district court of Shawnee county, and asked that the same be approved, in accordance with § 1 of chapter 99 of the laws of 1887. The plaintiff in error appeared in court and objected to the approval of said ordinance, and assigned, among other grounds, that the court had no jurisdiction to act upon said ordinance. The record discloses the fact that after hearing all of the objections, proofs and evidence, the court took the matter under advisement until the following day, when the following findings and judgment were made, and entered of record:

"Thereupon this cause comes on for decision and approval, it having been heretofore heard and taken under advisement by the court; and the court being fully advised in the premises, finds:

"First, that a correct copy of the above-described ordinance of said city of Topeka, to wit, ordinance No. 1060, duly certified by the clerk of said city under its seal, also affidavits showing the publication of said ordinance, have all been properly filed with the clerk of said court, as provided by law.

"Second, the court further finds that none of said tracts of unplatted territory described in said ordinance exceed five acres, and that said ordinance was duly passed by the mayor and councilmen of said city and duly approved by said mayor, and that said ordinance was duly and properly published for the time and in the manner as required by law, and that said ordinance therefore ought to be in all things approved by the court.

"It is therefore considered, ordered and adjudged by the court that the said ordinance be and the same is hereby entirely and in all things approved, and each and all of the platted and unplatted territory set out and described in said ordinance is hereby adjudged to be duly and properly taken into and added to the city of Topeka, and to be in all respects and for all manner and purposes a part of said city." No evidence was introduced upon the part of the plaintiff in error. A number of errors are assigned by the plaintiff in error, but we think they are all covered by the one controlling question, and are included in the first proposition of the plaintiff in error, that the provisions of § 1 of chapter 99 of the Laws of 1887 are unconstitutional and void. This question we will consider. We have recently been called upon to pass upon a similar act ( § 1 of chapter 69 of the Laws of 1886), relating to the annexation of territory to cities of the second class, in the case of Callen v. Junction City, 43 Kan. 627. The law was upheld in the case of...