Mendenhall v. Burton

• Decision Date: 09 November 1889
• Citation: 22 P. 558,42 Kan. 570
• Parties: R. G. MENDENHALL v. A. W. BURTON
• Court: Kansas Supreme Court

22 P. 558

42 Kan. 570

R. G. MENDENHALL v. A. W. BURTON

Supreme Court of Kansas

November 9, 1889

Error from Linn District Court.

ON the 7th day of October, 1869, a plat of the town of La Cygne was duly filed in the office of the register of deeds of Linn county. The town thus platted contained about 150 acres. On the 14th of January following, the probate court of said county incorporated the original town of La Cygne and other territory adjacent thereto as the village of La Cygne. This village became a city by the provisions of § 1, chapter 60, Laws of 1871, which made all cities, towns and villages theretofore organized, containing not more than 2,000 inhabitants, cities of the third class. The village thus incorporated contained 640 acres of land, including the 150 acres of the town plat. That tract only was laid off into avenues, streets, alleys, lanes, commons, etc., for public use; the remainder of the 640 acres consisted of arable prairie and timber land. The plaintiff owns 13.34 acres situated within the 640 acres above described, but outside the 150 acres; no part of his land has ever been platted. It is now occupied by the plaintiff as a homestead. There is a strip of land lying between the original town-site of 150 acres and this tract, 480 feet wide at its narrowest part this also has never been platted. On the north of the plaintiff's land, and adjoining it, there has since been an addition to the city of La Cygne, called Foote &amp Beach's addition; this has been formally dedicated. This land of plaintiff's abutted upon the principal street of the city, which extends through the original town of La Cygne, the undedicated tract, and Foote & Beach's addition; there was a sidewalk built alongside the property of plaintiff, and a fence erected of wood and iron. F. H Davis, who was one of the owners of the village-site incorporated by the probate court in 1870, for a long time owned and occupied this land as a homestead. He was one of the original petitioners for laying out the 640 acres for the village of La Cygne; repeatedly held offices under the city government, and had paid taxes on his land for a number of years. His grantee, who was the grantor of the plaintiff also paid the taxes for a number of years. This plaintiff, tendering the full amount of all other taxes upon the land except those levied for city purposes, refused to pay them. This action was brought to enjoin the treasurer from proceeding to collect the city taxes upon this land. Judgment for defendant Burton, at the July term, 1887. The plaintiff Mendenhall brings the case here.

Judgment affirmed.

James D. Snoddy, for plaintiff in error.

Selwyn Douglas, and Stephen H. Allen, for defendant in error.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.:

The plaintiff in error raises two questions for our determination: First, had the probate court any authority to incorporate the village of La Cygne? Second, can a city assess and collect taxes on farming land within its limits, when such land has never been platted or divided into streets, alleys, etc.? The defendant in error, while contending that both these questions should be determined against the plaintiff's claim, further argues that the power of the probate court to incorporate the village of La Cygne in January, 1870, cannot be inquired into on a question of the legality of the taxes levied on plaintiff's land; that the only way that the validity of the incorporation of the village can be questioned is by the state, through its proper officers, in a direct proceeding. The power given the probate court to incorporate towns and villages is found in § 1, chapter 108, General Statutes of 1868, which provides:

"Whenever a majority of the inhabitants of any town or village within this state shall present a petition to the probate court of the county, setting forth the metes and bounds of their village and commons, and praying that they may be incorporated, and a police established for their local government, and for the preservation and regulation of any commons appertaining to such town or village, and the court shall be satisfied that a majority of the taxable inhabitants of such town or village have signed such petition, and that the prayer of the petitioners is reasonable, the probate court may declare such town or village incorporated, designating, in such order, the metes and bounds thereof."

The plaintiff contends that the word "town" has a recognized meaning as used in this statute; i. e., a tract of land divided into lots, blocks, streets, alleys, squares, etc., upon which habitations and business houses have been erected, and which is inhabited by a community living near each other, requiring local government and control, and the land being so occupied by dwelling-houses and other buildings that it makes farming thereon impracticable; that it must, in fine, be an actual town. The defendant contends that more land might be embraced within the limits of a village to be incorporated than was actually occupied by dwellings and business houses; that it might reasonably be expected in a new country that there would be an increase in the population and a growth of the town, and that buildings would be extended beyond the town thus occupied; and further says that the law did not contemplate necessarily that the original metes and bounds of the town should be the metes and bounds of the village or town to be incorporated by the probate court, as the law itself gave to the probate court the authority of designating in its order of incorporation the metes and bounds of the proposed village.

The view we take of this case will not require a discussion of this question. The plaintiff contends that the city tax upon his property is illegal, for the reason that the city itself was not regularly incorporated. We think that the corporate character of a city cannot be questioned by a private citizen in an action to prevent the city from collecting its taxes, when it is acting under color of law. When La Cygne was incorporated, a law was in force under which it might have been organized. It has ever since been and now is a city de facto, claiming to exist by virtue of its incorporation under that law. Whether it was regularly incorporated might be determined in an action brought by the state through the proper officers, but cannot be inquired into collaterally by private citizens. We think this rule is well established. (Krutz v. Paola Town Co., 20 Kan. 397; St. Louis v. Shields, 62 Mo. 247; Tisdale v. Town of Minonk, 46 Ill. 9; Geneva v. Cole, 61 id. 397; Cooley, Const. Lim. 254; Dill. Mun. Corp., § 43; Blanchard v. Bissell, 11 Ohio St. 96.)

The plaintiff says, however, that it is not a mere irregularity that he complains of, but that the probate court acted in excess of its powers and without authority of law, and to that extent its acts were void. The probate court had authority under section 1, supra, to declare the town of La Cygne incorporated as a village. Under our constitution (art. 12, § 1,) it could not have been incorporated by a special act of the legislature. Instead of attempting to incorporate villages, towns and cities by special enactments, the legislature had by a general law fully defined what their corporate powers should be whenever one should be declared incorporated by the probate court. The court could not have added to or diminished the powers, privileges and immunities granted, or made the least change in the law governing villages; it did not attempt to create or define any corporate powers whatever. It simply determined and declared that a majority of the taxable inhabitants of the town had signed a petition praying that it should be incorporated, that the prayer was reasonable, and fixed the metes and bounds of the proposed village. This is no unusual exercise of authority in Kansas by the courts. (Comp. Laws 1885, ch. 19a, § 2.) Nor does Kansas stand alone in this method of incorporating cities. ( The State v. Goodwin, 69 Tex. 55; Hill v. City of Kahoka, 35 F. 32; Mayor etc. v. Shelton, 1 Head...