Shepherd v. The City of Kansas City

• Decision Date: 11 December 1909
• Docket Number: 16,214
• Citation: 105 P. 531,81 Kan. 369
• Parties: O. W. SHEPHERD et al., Appellants, v. THE CITY OF KANSAS CITY et al., Appellees
• Court: Kansas Supreme Court

105 P. 531

81 Kan. 369

O. W. SHEPHERD et al., Appellants, v. THE CITY OF KANSAS CITY et al., Appellees

No. 16,214

Supreme Court of Kansas

December 11, 1909

Decided July, 1909.

Appeal from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CURATIVE ACT--Unauthorized Act of Municipal Corporation--Legislative Powers. A curative act of the legislature may validate and legalize any act of the corporate authorities of a municipality in the state provided only that the legislature had the power under the constitution to authorize the municipal act in the first instance.

2. TAXATION--Special Assessment--Curative Act--Property "Liable" for Assessment. The qualifying phrase, "and against the property liable for assessment for such improvement at the time of the making thereof," in section 129 of chapter 122 of the Laws of 1903, means the property which would have been liable for the special assessment had no infirmity existed therein or in the steps leading thereto, which infirmity this section was enacted to cure by the terms thereof.

3. TAXATION--Special Assessment--Curative Act--Property "Liable" for Assessment. Invalid Assessment Enjoined--Reassessment--Res Judicata. The judgment of the court of common pleas of Wyandotte county perpetually enjoining the city of Kansas City, Kan., from the collection of an assessment under a former ordinance is not res judicata of the question here involved, which is the validity of an assessment under a different and subsequent ordinance.

James F. Getty, F. D. Hutchings, and David F. Carson, for the appellants.

J. W. Dana, and T. A. Pollock, for the appellees.

OPINION

SMITH, J.:

South Jersey creek runs from the west in an easterly direction along the northern part of Kansas City, Kan. In dry weather there is a very light flow of water in it. In 1887 the mayor and council of Kansas City, Kan., by ordinance established sewer district No. 3, and by another ordinance made provision for the construction of a sewer therein, running nearly north and emptying into this creek. In 1890 sewer district No. 14 was established, and in the same ordinance provision was made for the construction of a sewer also running from the south into this creek. In 1894 the city established sewer district No. 16, and afterward made provision by ordinance for the construction of a sewer running north, parallel with the others from the south, and emptying into South Jersey creek.

In 1902, the flow of water in the creek having proved insufficient properly to carry off the sewage, the city by ordinance created the South Jersey creek intercepting sewer district. This district included some territory farther west than either of the other districts, and a part of districts numbered 3 and 14 and all of district No. 16. Afterward the city by ordinance made provision for the construction of a sewer in this district, called the South Jersey creek intercepting sewer, which started in the new territory west and ran in an easterly direction, practically parallel with South Jersey creek, across the sewers in districts numbered 3, 14 and 16, and eventually discharged into the Missouri river. The sewers in districts numbered 3, 14 and 16, as constructed, were large sewers, and the sewer constructed across them was much smaller, and a dam fifteen or twenty inches high, at the north wall of the intercepting sewer where it crossed the other sewers, was made, so that the ordinary flow of sewage from each of the other main sewers was intercepted and would flow down the intercepting sewer to the river. But when the sewers were flushed by high water the water would overflow the low dam, and a portion of it would flow on to South Jersey creek and a portion follow the intercepting sewer to the river.

By ordinance the city apportioned the cost of the intercepting sewer to property in the territory west previously without sewerage, and to the property in the parts of districts numbered 3 and 14 included in the intercepting sewer district and to all the property of district No. 16, to raise a sinking fund to pay off the bonds of the city out of the proceeds of the sale of which the intercepting sewer had been built.

The appellants, owning property in districts numbered 3, 14 and 16 affected by the levy, brought suit in the common pleas court of Wyandotte county to enjoin the collection of the levy, and in that court obtained a final judgment perpetually enjoining such collection. That judgment stands unreversed and unappealed from. It was rendered on December 5, 1903. At the time the intercepting sewer was made and the first levy for the cost thereof assessed against the property of the appellants, section 740 of the General Statutes of 1901 was in force. It read as follows:

"The mayor and council shall have power to provide for a system of sewerage and drainage for the city, or any part thereof, and to build and construct sewers or drains by districts or otherwise, as the mayor and council may designate. The cost and expense of constructing the same shall be assessed against the lots or pieces of ground contained in the district in which the same is situated, and the cost of same shall be levied and collected as one tax in addition to other taxes and assessments, and shall be certified by the city clerk to the county clerk, to be placed on the tax roll for collection, subject to the same penalties and collected in like manner as other taxes, as provided by law: provided, that where any property has paid its full proportion for general sewers and drains in one district, it shall not be transferred to any other [and] made liable for taxation for sewers and drains therein."

The appellants...