Stewart v. Adams

• Decision Date: 08 April 1893
• Citation: 32 P. 912,50 Kan. 568
• Parties: M. W. STEWART, as Treasurer of Wyandotte County, et al., v. DAVID J. ADAMS et al
• Court: Kansas Supreme Court

32 P. 912

50 Kan. 568

M. W. STEWART, as Treasurer of Wyandotte County, et al., v. DAVID J. ADAMS et al

Supreme Court of Kansas

April 8, 1893

Motion for Rehearing.

THE facts sufficiently appear in the opinion herein, handed down April 8, 1893.

Rehearing denied.

J. M Asher, for the city of Argentine; H. A. Bailey, for the board of education; Hutchings, Keplinger & Miller, and Morgan & Riley, of counsel for plaintiffs in error.

White & Earhart, for defendants in error; Thos. J. White, of counsel.

JOHNSTON J., dissenting. HORTON, C.J., ALLEN J., concurring.

OPINION

Per Curiam:

Ordinance No. 115 was passed by the city of Argentine on May 14, 1889, while the city was a city of the third class. Ordinance 217 was passed on July 29, 1890, and published July 31, 1890, after the city had become a city of the second class. No other action has been taken by the city as a city of the third class than the passage of ordinance No. 115, nor as a city of the second class than the passage of ordinance No. 217, having for its object the extension of the original city limits so as to bring the property of plaintiffs below within its jurisdiction. It is conceded that if the property taxed has been added to the city, it was so added under and by virtue of the provisions of either ordinance No. 115 or No. 217. Upon the motion for a rehearing, it was earnestly and forcibly contended that all territory sought to be added by these ordinances to the city of Argentine which was subdivided into lots or parcels of five acres or less was taken in and made a part of the city thereby, even if it were conceded that the tracts of land exceeding five acres in extent not subdivided into lots or parcels were not added to the city. The title of ordinance No. 115 is as follows: "An ordinance extending the limits of the city of Argentine, Wyandotte county, Kansas, and declaring and defining the entire boundary thereof as changed by said extension."

Section 1 of the ordinance reads: "That the boundary of the city of Argentine, Wyandotte county, Kansas, shall include the territory of the original city of Argentine, described as follows:" [Here is set out the boundary of the original city of Argentine.]

Section 2 reads: "That the limits of the city of Argentine are hereby extended so as to include all the territory, pieces and parcels of land lying, being and situated between the boundary of the following-described land:" [Here is described a boundary line around a portion of the prior city limits and other undescribed territory; this without regard to platted or unplatted tracts of land.] This section omits a tract of about 41 acres included within the original incorporated limits of the city of Argentine, by leaving it outside of the boundary line.

The title of ordinance No. 217 is as follows: "An ordinance reestablishing and extending the city limits of Argentine, Kan." There are three sections only in this ordinance.

Section 1 reads: "That the limits of the city of Argentine are hereby reestablished according to the following description:" [Here follows a boundary line, but included therein are several unplatted tracts of land exceeding five acres in extent.]

Section 2 repeals all ordinances in conflict therewith, and section 3 provides that the ordinance shall take effect upon its publication. The ordinance contains nothing more.

Under the provisions of the statute, when a town or village is incorporated as a city of the third class, the board of county commissioners of the county in which such town or village is situate declares, upon proper proceedings before it, that the town or village is incorporated by a certain name, designating in the order the metes and boundaries thereof; and "thenceforth the inhabitants within such bounds, and such further territory as from time to time may be lawfully added thereto, shall be a body politic and corporate by that name, and they and their successors (except such corporation be lawfully dissolved) shall have perpetual succession." (Paragraph 923, Gen. Stat. of 1889.)

When cities of the second class are organized, the mayor and council of the city must make out and transmit to the governor an accurate description of the metes and boundaries of all lands in the city and additions thereto, and the boundary is thereby established. (Paragraph 756, Gen. Stat. of 1889.) Therefore the boundaries of cities of the second and third class are not to be altered or changed by the mayor and city council, except authority is given by statute to add territory by ordinance "when the territory sought to be added is subdivided into lots or parcels of five acres or less." Additional territory may also be added to cities of the second and third class upon proper proceedings had in the second class before a judge of the district court, and in the third class before the board of county commissioners.

In ordinance No. 115, the boundary line left outside of the limits of the city a large tract of land formerly belonging to it, which the mayor and council had no authority to do. The claim that this court may construe these ordinances to add only the territory subdivided into lots or parcels of five acres or less, and omit undivided tracts or parcels cannot be sustained on account of the provisions of the ordinances fixing the boundary of the city of Argentine. If either ordinance had merely added to the city of Argentine, as originally...