Stewart v. Adams

• Decision Date: 07 January 1893
• Citation: 50 Kan. 560,32 P. 122
• Parties: M. W. STEWART, as Treasurer of Wyandotte County, et al., v. DAVID J. ADAMS et al
• Court: Kansas Supreme Court

32 P. 122

50 Kan. 560

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

Supreme Court of Kansas

January 7, 1893

Error from Wyandotte District Court.

THIS action was brought in the court below by David J. Adams Julius King and F. B. Mitchener against M. W. Stewart, as county treasurer of Wyandotte county, et al., to enjoin the collection of taxes levied upon their property by the city of Argentine. The case was tried upon an agreed statements of facts, and the court rendered judgment in favor of the defendants, perpetually enjoining all the taxes complained of. In 1882, the city of Argentine was created as a city of the third class. The property included in this case was not within its limits when created. No change was made in the city boundaries until 1889, when an ordinance was enacted attempting to extend the limits so as to include this property. All the property so included was not platted into lots and blocks. The trial court made and filed the following conclusions of law:

"1. Said ordinance No. 115, described and set out in plaintiffs' petition, passed May 14, 1889, is illegal and void for the purpose of extending the limits of the city of Argentine, and said ordinance did not add or annex the property of these plaintiffs as described in their petition to said city of Argentine.

"2. The action of the directors of school district No. 40 Wyandotte county, Kansas, on July 24, 1889, in attempting to attach the territory of school district No. 41 to school district No. 40 for school purposes, was illegal and void and said action of said school directors did not attach the property of the plaintiffs described in the petition to said district No. 40 (which was afterward succeeded by the board of education of the city of Argentine) for school purposes.

"3. The property of these plaintiffs described in the petition has never been legally attached to the city of Argentine for school purposes.

"4. Said ordinance No. 217, described and set out in plaintiffs' petition, passed July 29, 1890, is illegal and void for the purpose of extending the limits of the city of Argentine, and said ordinance did not add or annex the property of these plaintiffs, as described in the petition to said city of Argentine.

"5. The levies of taxes by the city of Argentine for the year 1891, of 8 mills on the dollar for water, 8 mills on the dollar for light, and 2 mills on the dollar for fire-department supplies, were each and all in excess of the maximum legal amount authorized to be levied by said city under the law for said year for such purposes, and are each and all illegal and void.

"6. The property of plaintiffs, described in the petition, was not, at any time during the year 1891, within the corporate limits of the city of Argentine; and said property is not liable for any of the taxes or special assessments levied or charged up by the city of Argentine against said property, or for the taxes levied by the board of education of the city of Argentine and charged against the said property for said year 1891.

"7. The plaintiffs are entitled to the relief and injunction prayed for in their petition."

The defendants excepted, and bring the case here.

Judgment affirmed.

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.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The questions in this case are: (1) Was the property of plaintiffs below within the corporate limits of the city of Argentine and subject to taxation therein for the year 1891? (2) If the property was not within the corporate limits of the city, was such property within any territory which had been legally added or attached to the city for school purposes, so as to make it subject to the taxes levied by the board of education of the city for that year? (3) If the property was within the city limits and subject to any taxation therein, were the levies of taxes by the city for water, electric light and fire-department supplies legal?

The last question is answered in the negative by the case of Stewart v. Town Co., just decided. It is held, in that case, that "supplies of water, light and for the fire department are among the daily necessities of a city, and naturally fall within the class of expenses which are to be paid out of the general revenue fund." Therefore the city of Argentine, a city of the second class, after levying 10 mills on the dollar for general revenue purposes in 1891, had no authority to levy in addition the taxes complained of for water, electric light, and fire-department supplies. The city of Argentine claims that the property upon which taxes were levied in 1891, was within the limits of the city under the provisions of either or both ordinances Nos. 115 and 217. Ordinance No. 115 was passed by the city on May 14, 1889, while Argentine was a city of the third class. Ordinance No. 217 was passed on July 29, 1890, and published July 31, 1890, after Argentine had become a city of the second class. The attempted extended limits of Argentine included unplatted territory as follows: Within the limits established by ordinance No. 115: A tract of 20 acres, marked "A" upon the map; a tract of about eight acres, marked "D;" and three tracts, of about five acres each, marked respectively "F," "H," and "I." Within the limits established by ordinance No. 217, and beyond those established by ordinance No. 115: A tract of about eight acres, marked "B;" a tract of about 10 acres, marked "C;" and a tract of about 15 acres, marked "J." The charter provision for the extension of the limits of cities of the third class is in P 1018, General Statutes of 1889, and provides --

"That whenever the city council of any city of the third class desire to enlarge the limits thereof from the territory adjacent thereto, said council shall, in the name of the city, present a petition to the board of commissioners of the county in which said city is situated, setting forth by metes and bounds the territory sought to be so added, and praying that such territory may be added thereto. Upon such petition being presented to said board, with proof that notice as to the time and place said petition shall be so presented has been published for three consecutive weeks in some newspaper published in said city, they shall proceed to hear testimony as to the advisability of making such addition, and upon such hearing, if they shall be satisfied that the adding of such territory to the city will be to its interests, and will cause no manifest injury to the persons owning real estate in the territory sought to be added, they shall make an order declaring said territory a part of the corporate limits thereof and subject to the laws and ordinances pertaining thereto: Provided, That no such proceeding shall be necessary when the territory sought to be added is subdivided into lots or parcels of five acres or less, but in such cases the city council of said city shall have power to add such territory to said city by ordinance." (Laws of 1872, ch. 102, § 3, as amended by Laws of 1886, ch. 66, § 4.)

The provisions for extending the limits of cities of the second class are subtantially the same as those for extending the limits of cities of the third class, except that the petition for the second class must be presented to the judge of the district court instead of to the board of county commissioners, as in the third class; and except, also, that in cities of the second class an ordinance of the city council must follow the finding of the judge of the district court. (Gen. Stat. of 1889, P 884; Laws of 1885, ch. 97, § 1, as amended by Laws of 1886, ch. 69, § 1.)

The trial court, in its opinion holding that ordinance No. 217 is void, said, among other things:

"The boundaries set out in the ordinance include a large territory of land, consisting of different tracts and descriptions not included within the prior limits of the city. A portion of the territory so included in the ordinance, and not included within the prior limits of said city, consists of lands which had not been platted or subdivided into lots and blocks while other portions of said territory had, prior to said time, been so platted and subdivided. No proceeding or action of any kind, either by petition to the judge of the district court or otherwise, as prescribed by said P 884, was had in relation to adding the territory or any part thereof to the city, except the passage and publication of said ordinance. Granting that the ordinance is sufficient by its terms for the addition of territory to the city, that it is void so far as it affects land...