The Chicago v. The City of Manhattan

• Decision Date: 07 February 1891
• Citation: 45 Kan. 419,25 P. 879
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, KANSAS & NEBRASKA RAILWAY COMPANY v. THE CITY OF MANHATTAN et al

25 P. 879

45 Kan. 419

THE CHICAGO, KANSAS & NEBRASKA RAILWAY COMPANY v. THE CITY OF MANHATTAN et al

Supreme Court of Kansas

February 7, 1891

Decided January, 1891.

Original Proceeding in Mandamus.

THE opinion, filed February 7, 1891, contains a sufficient statement of the case.

John E Hessin, and J. D. McFarland, for plaintiff.

Sam. Kimble, for defendants.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This is an original action of mandamus to compel the mayor and council of the city of Manhattan to issue to the Chicago, Kansas & Nebraska Railway Company $ 15,000 of bonds of that city. The action is submitted upon an agreed statement of facts, which shows that on the 17th day of June, 1887, a petition was presented to the mayor and council of the said city of Manhattan, signed by more than two-fifths of the resident tax-payers of said city, praying that an election be held to vote upon the question of issuing the bonds; that the mayor and council acted upon the petition and ordered the election; that proclamation was made; that on the 5th day of July, 1887, the election was held; that the returns of the votes cast at the election were canvassed, and by the canvass it was ascertained and declared that the proposition to vote the bonds had carried by a majority of twenty-two votes; that the election was held, and the bonds voted under and pursuant to chapter 67 of the Laws of 1886, commonly known as the terminal-facilities act; that all of the provisions and conditions of the act were duly complied with, and that afterward the plaintiff demanded of the defendants that they issue the bonds, which was refused.

The assessed value of all taxable property within the city of Manhattan, as shown by the assessment books and records in the office of the county clerk of the county of Riley, for the year 1886, is the sum of $ 594,000; for the year 1887, the sum of $ 607,400; for the year 1888, the sum of $ 723,640. The defendants refused to issue the bonds upon the ground, first, that the House and Senate Journals of 1886 show affirmatively that no law was at that time passed entitled "An act to authorize cities of the first and second class to issue bonds," etc., known as house bill No. 301; and, second, that if they issue the fifteen thousand dollars of bonds voted at the election, the bonded indebtedness of the city would then exceed ten per cent. of the value of the taxable property within the city, and that by virtue of § 5 of chapter 99 of the Laws of 1885, cities of the second class are prohibited from issuing bonds in excess of that amount. (Gen. Stat. 1889, P 797.) The title of the act of 1886, in the enrolled bill on file in the office of the secretary of state, reads: "An act to authorize cities of the first and second class to issue bonds for the purpose of aiding railroad companies in securing and paying for lands and right-of-way, depot grounds, and terminal facilities." The body of the act embraces cities of the second class as well as cities of the first class.

Upon the authority of The State ex rel. v. Francis, 26 Kan. 724, it must be held that the title of the act of 1886 was properly agreed to, and that the act was properly passed and approved. In that case it was decided, among other things, that--

"The enrolled statute on file in the office of the secretary of state is very strong presumptive evidence of the regularity of the passage of the statute, and of its validity; and it is conclusive evidence of such regularity and validity, unless the journals of the legislature clearly, conclusively and beyond all doubt, show that the act was not passed regularly or legally."

The serious question in this case is, whether the limitation of the bonded indebtedness of a city of the second class to ten per cent. of the assessed value of its taxable property, as prescribed by § 5, chapter 99, of the Laws of 1885 (Gen. Stat. of 1889, P 797,)...