Leavenworth v. Wilson

• Decision Date: 09 April 1904
• Docket Number: 13,564
• Parties: THE CITY OF LEAVENWORTH et al. v. JOHN WILSON
• Court: Kansas Supreme Court

76 P. 400

69 Kan. 74

THE CITY OF LEAVENWORTH et al. v. JOHN WILSON

No. 13,564

Supreme Court of Kansas

April 9, 1904

Decided January, 1904.

Error from Leavenworth district court; J. H. GILLPATRICK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CITIES AND CITY OFFICERS -- Purchase and Construction of Waterworks -- Void Bond Election. Under the Laws of 1897 and 1901, authorizing cities of the first class to provide themselves with water-works of their own, the purchase of an existing plant and the construction of a new one are separate and distinct methods of executing such a design; and a ballot submitting to the voters of a city of the first class a proposition to issue bonds "to purchase, procure provide or contract for the construction of water-works," is dual, and for that reason illegal, and an election carried by the use of such ballots is void.

F. P. Fitzwilliam, and C. R. Middleton, for plaintiffs in error.

Atwood & Hooper, and Baker & Baker, for defendant in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

A resident taxpayer of the city of Leavenworth secured an injunction restraining the municipality from issuing water-works bonds in the sum of $ 400,000, under sections 8, 10, 11 and 12 of chapter 82, Laws of 1897, and section 9 of that chapter as amended by section 1 of chapter 107 of the Laws of 1901 (Gen. Stat. 1901, §§ 660-664). At the time the injunction proceedings were commenced an election had been held, at which a proposition to vote the bonds had carried, but the securities had not been issued. The election proclamation stated the purpose of the election as follows:

"For the purpose of submitting to the electors of the city of Leavenworth a proposition to issue bonds of the city of Leavenworth to the amount and sum of $ 400,000, to either purchase and procure the Leavenworth City and Fort Leavenworth Water Company's plant, with all its rights, extensions and property thereunto belonging, or provide and contract for the construction of a new water plant."

The ballot presented to the voters and voted at the election made the following submission:

"SHALL THE FOLLOWING BE ADOPTED? To issue bonds of the city of Leavenworth in the sum of $ 400,000 to purchase, procure, provide or contract for the construction of water-works."

The district court concluded that the ballot contained two propositions -- one for the purchase of an existing plant and one for the building of a new plant, and that because it was dual the ballot was illegal and the election void. If this be true the injunction must be upheld.

Section 8 of the law referred to grants in the most ample form to cities of the first class the power to provide themselves with their own gas, electric-light, electric-power, heating and water plants. Every defect of authority to purchase, procure, provide and construct any of the enumerated plants is completely removed. Section 9 authorizes the issuing of bonds to meet any and all indebtedness created under section 8. In providing for the use of such bonds, however, in the payment of any such indebtedness, an antithesis is apparently made by the language of the act between purchase and construction, as if they were separate and distinct objects of municipal indebtedness. By section 10, under certain conditions, an election is to be called by the acting mayor for the purpose of submitting to the electors "a proposition" to issue bonds "for any and all purposes" mentioned. The last expression, however, is to be related to the obligation of the acting mayor to call the election, rather than to any matter of form in submitting the proposition or propositions to the voters.

Section 2709, General Statutes of 1901, provides as follows:

"Whenever a constitutional amendment or other proposition or question is to be submitted to the voters of the state, or any district or municipality thereof, a separate ballot shall be provided by the same officers who are charged by law with the duty of providing the official ballots for candidates for public office. Such ballot shall comply with the requirements for official ballot for candidates for public office in so far as such requirements are applicable thereto. Upon said ballot there shall be printed by designated title, in brevier lower-case type, the constitutional amendment or other proposition or question upon which the voters within the township, ward or precinct for which such ballot is prepared may lawfully vote, preceded by the words, 'Shall the following be adopted?' If there be more than one constitutional amendment, proposition or question to be voted upon, the different amendments, propositions or questions shall be separately numbered and printed, and be separated by a broad, solid line one-eighth of an inch wide."

By section 11 of the statute first referred to it is provided that if the bonds carry the city shall issue them "for the purpose and in the manner and to the amount" specified in the act. These are the only statutes bearing immediately upon the subject.

The city contends that since the mayor and council, as the organ of corporate authority, have the right to determine whether the city shall buy or shall build, and to make all necessary contracts for purchase or for construction as they see fit, it is unnecessary to submit to the voters any question but that of issuing bonds for providing the city with water-works of its own, and that such submission was fairly made to the voters of the city of Leavenworth.

It is true that the mayor and council have a wide discretion in determining how the city shall be supplied with water ( The State v. Topeka, 68 Kan. 177, 74 P. 647, decided December 12, 1903), and it is true that the people can exercise no part of the authority vested in the governing body of the municipality. But the statute reserves a large and clearly defined discretion in the matter to the people themselves. No plan involving the issuing of bonds can be carried out without their sanction. Even though the mayor and council may contract they cannot pay by means of bonds unless the people approve. Every arrangement for indebtedness which the mayor and council may make involving city bonds must include an appeal to the ballot-box, and must fail if the ballot-box be found to contain a majority of adverse votes. This discretion of the taxpayer the mayor and council cannot exercise and cannot control. Since, therefore, no bonds may be issued for any purpose or for any set of purposes unless the people be consulted and give their consent, every voter must have a fair opportunity to register an intelligent expression of his will. This the official ballot failed to provide.

The subject of purchasing a particular water-works plant already in existence is utterly diverse from that of building a new one. It needs neither...