Schenk v. Kansas City

• Decision Date: 12 December 1931
• Docket Number: 29882.
• Citation: 5 P.2d 842,134 Kan. 181
• Parties: SCHENK et al. v. CITY OF KANSAS CITY et al.
• Court: Kansas Supreme Court

5 P.2d 842

134 Kan. 181

SCHENK et al. v. CITY OF KANSAS CITY et al.

No. 29882.

Supreme Court of Kansas

December 12, 1931

Syllabus by the Court.

Taxpayers' action to enjoin collection of repaving assessments, etc brought some six years after completion of improvement, held barred by 30-day limitation and laches (Rev. St. 1923 12--608; Rev. St. Supp. 1930, 13--1088).

Where pertinency of statute of limitations is apparent from petition, general demurrer will lie, though statute is not specially pleaded.

In 1923 Kansas City undertook to repave a street pursuant to statutory authority. Within a few months the work was completed. In 1925 the assessment ordinance was adopted and levies and assessments on abutting property were made, and temporary notes of the city were issued to pay for the improvement. In 1929, plaintiffs, as taxpayers, brought suit to enjoin the collection of the assessments and the issuance of bonds to redeem the temporary notes, pleading many irregularities and alleged breaches of statutory regulations governing the construction of such improvements and limiting expenditures therefor. Held, the action was barred by the thirty days' statute of limitations, by laches, and for want of equity.

Rule followed that where the pertinency of a statute of limitations is obvious from the facts alleged in a petition a general demurrer will lie, without such statute being specially pleaded.

Appeal from Wyandotte district court, Division No. 4; Charles A Miller, Judge.

Action by D. W. Schenk and others against the City of Kansas City, Kansas, and others. Judgment for the defendants, and the plaintiffs appeal.

William E. Carson, J. E. McFadden, O. Q. Claflin, Thomas A. Pollock, and David F. Carson, all of Kansas City, for appellants.

L. S. Harvey, City Atty., and Alton H. Skinner and John C. O'Brien, Asst. City Attys., all of Kansas City, for appellees.

DAWSON J.

This was an action by taxpayers to enjoin the collection of certain special assessments made for the repaving of six blocks of Kansas avenue in Kansas City, and to enjoin the issuance of bonds to refund temporary notes which the city has already issued to pay for this street improvement.

Plaintiffs' petition is not submitted for our examination, but it must have been a long one, because a summary of its contents occupies 60 pages of appellants' abstract. From it and appellants' brief we glean that in June, 1923, pursuant to a petition of property owners the governing body of Kansas City adopted a resolution that the proposed improvement of repaving was necessary. In July, 1923, the city engineer's estimates were filed, the requisite paving ordinance was enacted and published, bids invited by advertisement were received, and the contract let. On December 4, 1923, the city engineer reported the completion of the repaving (and other work done) at a cost of $53,760. On June 23, 1925, the city issued temporary notes to pay the contractor, and on September 1, 1925, an ordinance was passed levying special assessments against the lands benefited by the improvement, which included the plaintiffs' properties. The water and light department of the city bought the temporary notes, and plaintiffs alleged that to refund these notes the defendant city was about to issue bonds at the time this action was begun, December 17, 1929--some six years after the improvement was completed and four years after the temporary notes were issued to pay for it.

In their petition plaintiffs alleged many illegalities and irregularities in the proceedings pertaining to the repaving and leading up to the issue of the temporary notes and the proposed issue of bonds for their redemption. It is alleged that the property owners' petition for the repaving of the street was defective because it did not specify the width of the proposed repaving; it merely stated that the petitioners wanted it repaved "between the present curbs." The paving resolution was void because it specified that a particular kind of brick should be used on a concrete foundation. The contract for the repaving was void because the city had already exceeded the statutory annual maximum of $500,000 for improvements when this contract was let. The total bonded indebtedness of the city already exceeded the statutory maximum without including the cost of this particular project. The resolution to repave was void because it was only published for six days and one of them was Sunday. The resolution only spoke of repaving the street and said nothing concerning the necessary "curbing recurbing or repairing of curbing or repairing of old or construction of new catch basins for sewers" incidental thereto. The title of the ordinance was defective in that it only provided for the repaving of the street. The paving specifications prepared by the city engineer excluded from the projected repaving "the space between the outer rails of the Kansas City Railways Company's tracks." No plans to accompany the specifications were ever made or filed and the recital in the ordinance relating to such plans "was in fact untrue." The specifications were likewise defective because they called for brick of specified sizes-- it being alleged that no brick of any such size "was or is manufactured." The advertised notice to contractors (inviting bids) was irregular, in that the governing body of the city did not order the city clerk to publish it. The engineer's estimates filed under seal were approved by the governing body without examination. In his detailed estimate the city engineer set down an item of $3,153 "for engineering and incidentals" and that all such expenses did not in fact exceed the sum of $1,000. The written contract with the contractor was not followed, and he was given certain allowances not covered by his contract. The contractor who was awarded the contract and who constructed the improvement never signed the contract. After the contract was made (July 31, 1923), it was altered so as to give the contractor certain discarded brick, and that the value thereof was $5,000. The projected pavement is not yet completed--nothing having been...