Ritchie v. City of South Topeka

• Decision Date: 07 January 1888
• Parties: HANNAH RITCHIE, et al., v. THE CITY OF SOUTH TOPEKA, et al
• Court: Kansas Supreme Court

16 P. 332

38 Kan. 368

HANNAH RITCHIE, et al., v. THE CITY OF SOUTH TOPEKA, et al

Supreme Court of Kansas

January 7, 1888

Error from Shawnee Superior Court.

INJUNCTION by Ritchie against the City of South Topeka, and others. The opinion contains a substantial statement of the facts. Trial at the November Term, 1886, and judgment for defendants. The plaintiff brings the case to this court.

Judgment affirmed.

W. P Douthitt, E. E. Chesney, and Waters & Chase, for plaintiff in error.

W. A S. Bird, city attorney, for defendants in error; C. M Foster, of counsel.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.:

This was an action brought by John Ritchie, now deceased, in the superior court of Shawnee county, to enjoin the collection of taxes levied by the city of South Topeka in the year 1886, and the special assessment made by the city for paying for certain sidewalks laid upon the streets and avenues abutting upon the land and lots of the plaintiff. The plaintiff alleged in his petition that he is the owner of the northeast quarter of section six, township twelve, and range sixteen east, Shawnee county, except such parts thereof as he had sold to certain individuals; that said tract was borne upon the tax-rolls of said county as land; that said tract had no other rightful description than as land, and as a part of said quarter-section. The alleged ground of illegality of the general tax is, that no quorum of the city council was present when the ordinance levying the general tax was passed, and that a majority of the city council were not qualified under the law to hold the office. The main objection urged against the legality of the sidewalk assessment is, that the sidewalks built or repaired upon the plaintiff's land were not built or repaired upon any avenue, street, alley or other public ground within the limits of the city; that the plaintiff had at no time platted or otherwise dedicated, sanctioned or acquiesced in the platting of said land for public uses, but on the contrary he had sought by every means in his power to have the land remain by its original description as land. He further alleged that the ordinance levying the assessment was passed long prior to the building and repairing of said sidewalks, and before any contract for the building and repairing of the same had been made. The action was tried by the court without a jury; questions of fact found; conclusions of law made, and judgment rendered in favor of the defendants. Since the action was brought to this court the plaintiff in error has died, and the cause has been revived in the names of his heirs.

A summary from the findings of fact, which are voluminous, is as follows: The city of South Topeka was organized July 15, 1885, as a city of the third class; on June 4, 1886, by proclamation of the governor, it was declared a city of the second class. Nothing was done, however, to perfect its organization as a city of the second class until July 28th following, when the city council passed an ordinance dividing the city into four wards, and another ordinance ordering an election for three additional members of the city council. The election was held on the 9th of August following; on the 12th of the same month the vote was canvassed. On the last-named day, before the canvassing of the vote, an ordinance levying general taxes was passed by a vote of four members of the old council, all that were present. It is this ordinance that the plaintiff claims to be illegal. As a city of the third class, the council consisted of five members; as a city of the second class, eight. It is necessary in order to enact any ordinance, that a majority of the city council shall vote in favor of its passage. The four councilmen who were present were members of the council of the city when it was a city of the third class, and also as a city of the second class. If the city was acting under its incorporation as a city of the third class, then a majority of the councilmen voted in favor of this ordinance; if it was acting as a city of the second class, then there was not a sufficient number voting for its passage to constitute it a valid ordinance.

What was the status of the city of South Topeka at this time? It was declared to be a city of the second class by the governor's proclamation of June 4, 1886, but its municipal government was not fully organized until some time after that date. In Campbell v. Braden, 31 Kan. 754, this court suggests that it necessarily requires time for such organization to be completed, and in this case we cannot say there was an unreasonable delay. It would not be completed until its officers, including the councilmen, were elected; the proper evidence of their election would be the canvass of the vote by the proper authorities. This was not done at the time of the levying of this tax, and therefore the city of South Topeka at that time was acting, so far as its officers were concerned, as a city of the third class. It is necessary that there should be some city government at all times, and the mere proclamation of the governor changing the form of the city from a city of the third to a city of the second class, did not leave the city without a city government, and of necessity, until the officers of the city as a city of the second class qualified as such officers, the old form of government and the old officers would continue. We think that the ordinance complained of was valid.

The objections to the sidewalk assessment are numerous; we shall notice only those that apparently have...