State ex rel. Boynton v. City of Topeka

• Decision Date: 14 February 1935
• Docket Number: 32358.
• Citation: 141 Kan. 309,41 P.2d 260
• Parties: STATE ex rel. BOYNTON, Atty. Gen., v. CITY OF TOPEKA et al.
• Court: Kansas Supreme Court

41 P.2d 260

141 Kan. 309

STATE ex rel. BOYNTON, Atty. Gen., v. CITY OF TOPEKA et al.

No. 32358.

Supreme Court of Kansas

February 14, 1935

Syllabus by the Court.

In absence of statute requiring municipal bonds to be issued within specified time after election authorizing them, when bonds shall be issued rests in sound discretion of municipality (Rev. St. 1923, 13--1024).

Authorized bonds may be issued by municipality from time to time and in its discretion as necessity therefor arises (Rev. St. 1923 13--1024).

Issuance of bonds by municipality should not be restrained unless it clearly appears that no necessity therefor exists or that conditions have so changed since authorization of bonds that issuance would be inequitable (Rev. St. 1923, 13--1024).

1. Unless the statute requires municipal bonds to be issued within a specified time after the election at which they were authorized, the time of issuance rests in the sound discretion of the governing body upon whom that duty is imposed.

2. A municipality is not required to issue all bonds voted at an election at one time, but may issue them as needed, and a delay in issuing them does not bar the right to issue them when, in the discretion of the governing body, the necessity arises.

3. The exercise of the discretion in the issuance of bonds by the governing body should not be interfered with by the court unless it clearly appears that the purposes for which the bonds were originally voted have ceased to be necessary, or have been abandoned or the conditions have so changed it would be inequitable to allow the bonds to be issued.

Appeal from District Court, Shawnee County, Division No. 1; George A. Kline, Judge.

Action by The State, on the relation of Roland Boynton, Attorney General, against the City of Topeka and others. From a judgment sustaining a demurrer to relator's petition relator appeals.

Roland Boynton, Atty. Gen., and Tinkham Veale, of Topeka, for appellant.

Randal C. Harvey, City Atty., and Henry D. Dangerfield, Asst. City Atty., both of Topeka, for appellees.

THIELE Justice.

This was an action to enjoin the issuance of bonds by the city of Topeka, and from a ruling sustaining a demurrer to its petition the plaintiff appeals.

Omitting formal allegations, the petition alleged that at a special election held November 2, 1926, the voters of Topeka authorized and directed the governing body of the city to acquire sites and to construct fire stations and to issue bonds of the city in a sum not exceeding $165,000 to pay therefor, and that it did construct one station costing $92,265.63; that on October 23, 1934, the governing body passed a resolution to purchase a site west of Lane street and to construct a fire station thereon and to issue bonds to pay the cost and expense of construction over and above any amount which may be obtained from the federal government for relief work and to levy a general tax for the payment of said bonds. A copy of the resolution attached to the petition sets out the history above noted, and that at this time there is no fire station west of Lane street, and that part of the city does not have adequate fire protection, and calls for the issuance of bonds not exceeding the unexpended amount between the $165,000 authorized and the $92,265.63 already issued, or $72,734.37. It was further alleged that since November, 1926, the circumstances and conditions have very materially changed, in that in 1926 there was no necessity for a fire station west of Lane street; that at said time there was general business prosperity in Topeka, but at the present time, on account of business depression, the taxpayers of the city are much less able to bear the additional tax burden which would be caused by the issuance of such bonds; that, on account of the lapse of time since the election in 1926, the purchase of a site and issuance of bonds for the above purposes are not authorized, as the voters did not authorize the making of improvements and issuance of bonds eight years thereafter; that the purchase of site, erection of a fire station, and the issuance of bonds would be in violation of law. It is further alleged that the governing body is threatening to and, unless restrained, will purchase the site, construct the station, and issue the bonds, all without lawful authority, etc. To raise the question of law involved, defendants demurred, and it is from the sustaining of that demurrer plaintiff appeals. Although not shown by the petition, we are informed by the parties that the proceedings in 1926 were in virtue of R. S. 13--1024, which, for our purposes, is abstracted to read as follows: "For the purpose of paying for any *** public building *** or for any other improvements or works not otherwise herein provided for, and for the purpose of rebuilding, adding to or extending the same from time to time, as the necessities of the city may require, the city may borrow money and issue its bonds for the same; but no bonds shall be issued for such purposes unless the same are authorized by a majority of the votes cast at an election held for that purpose. ***"

The sole question presented is whether, by lapse of time, the city abandoned the proceedings for making improvements. There is no statute fixing the time within which the bonds must be issued or the improvement made; neither has there been any affirmative action by the city after the date of the election in 1926 and prior to the resolution in 1934 indicating an intention not to proceed with the erection of other fire stations to be paid for out of the remaining authorized bond issue.

In 44 C. J. 295, it is stated: "The intention of the municipal authorities to abandon proceedings for the making of a public improvement may be implied, as well as express, but such an intention will not be inferred unless the facts are not reasonably consonant with any other theory."

The petition does not charge an abandonment, but alleges two grounds, which to a certain extent are inconsistent with each other, why it should be said the governing body has waited too long to exercise the authority conferred on it. The claim that in 1926 there was no necessity for a fire station west of Lane street, is an argument in favor of waiting. It would have been improvident to build a station when there was no need for it. The argument that the depression makes it more burdensome to pay taxes to retire the bonds has more force, standing alone, but it ignores the present policy of both the state and federal governments to proceed with public works in order to afford employment.

The statute under which the bonds were authorized not only does not contain a limitation of time, but shows on its face that it is not limited to a single bond issue for a single improvement, for it uses this language: "For the purpose of rebuilding, adding to or extending the same from time to time, as the necessities of the city may require." The proposition submitted in 1926 was to authorize the city "to acquire lands for sites and establish and construct...