The City of Topeka v. Dwyer

• Decision Date: 05 November 1904
• Docket Number: 14,079
• Citation: 78 P. 417,70 Kan. 244
• Parties: THE CITY OF TOPEKA v. JAMES DWYER et al
• Court: Kansas Supreme Court

78 P. 417

70 Kan. 244

THE CITY OF TOPEKA v. JAMES DWYER et al

No. 14,079

Supreme Court of Kansas

November 5, 1904

Decided July, 1904.

Appeal from Shawnee district court; Z. T. HAZEN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MUNICIPAL CORPORATIONS--Annexation of Territory. A statute authorizing municipal corporations to enlarge their corporate areas by the annexation of territory is, to that extent, one for the organization of such corporations.

2. MUNICIPAL CORPORATIONS--Completed Proceedings Cannot be Questioned Collaterally. Completed proceedings for the enlargement of the corporate area of a city, authorized by an act of the legislature, are not open to collateral attack in a prosecution for the enforcement of an ordinance of the city within the annexed territory so far as mere defects informalities and irregularities, questions of good faith and good judgment, the finding of necessary facts, the determination of disputes of fact and like matters are concerned.

3. MUNICIPAL CORPORATIONS--Nor Can the Constitutionality of the Statute be so Attacked. The constitutionality of a statute for the enlargement of the corporate areas of cities, apparently regular in form and fairly indicative of the legislative will, cannot be attacked collaterally in a prosecution for the enforcement of a city ordinance within territory annexed by virtue of proceedings authorized by such statute.

Charles F. Spencer, city attorney, for appellee.

H. C. Root, for appellants.

BURCH J. All the justices concurring.

OPINION

BURCH, J.:

Appellants were convicted in police court, and, on appeal, in the district court, of keeping and rearing swine within the corporate limits of the city of Topeka. Appellants admit the keeping and rearing of swine, but defend on the ground that the land devoted to that business was not a part of the city.

The city produced ordinances enacted and published in the year 1889, and judgments of the district court of Shawnee county rendered upon such ordinances, all under chapter 99 of the Laws of 1887, purporting to extend the limits of the city over the territory in question. Appellants make two classes of objections to this proof of annexation, one assailing the sufficiency and regularity of the proceedings of the city council and of the district court, and another attacking the validity of the statute under which those proceedings were taken.

If appellants have no right to question, in this collateral manner, the judgments, the ordinances, or the statute, the merits of their objections will not be investigated; if they have such right, they are entitled to a decision of the questions raised. What is the law?

So far as defects, informalities and irregularities, questions of good faith and good judgment, the finding of necessary facts, the determination of disputes of fact and like matters are concerned, it is established beyond cavil that annexation proceedings are closed against collateral attack.

"To maintain this suit, and to defeat the tax complained of, the plaintiff must establish, and the court must determine, that the organization of the district is illegal. This cannot be done in the present action. The legality of the organization cannot be questioned in a collateral proceeding, nor at the suit of a private party. The organization cannot be attacked, nor any action taken affecting the existence of the corporation, except in a direct proceeding, prosecuted at the instance of the state by the proper public officer. (Voss v. School District, 18 Kan. 467; School District v. The State, 29 id. 57; Stockle v. Silsbee, 41 Mich. 615, 2 N.W. 900; Clement v. Everest, 29 id. 22.) In the last case cited it is said that 'It would be dangerous and wrong to permit the existence of municipalities to depend upon the result of private litigation. Irregularities are common and unavoidable in the organization of such bodies, and both law and policy require that they shall not be disturbed except by some direct process authorized by law, and then only for very grave reasons.'

"We do not intend to decide that in organizing this district the county superintendent's action was regular and legal. . . .

"What we do decide is, that there exists a valid law under which the organization can be made; that a corporation has been created thereunder, and is in existence; and that if there were any irregularities or illegal action in its organization, either by reason of the boundaries established or otherwise, that it must be determined by a quo warranto proceeding brought by the state." (A. T. & S. F. Rld. Co. v. Wilson, Treas., 33 Kan. 223, 227, 6 P. 281.)

In the case of McGrew v. Stewart, 51 Kan. 185, 192, 32 P. 896, 898, it was said:

"Another point is presented, that plaintiff's land is not a part of the city, for the reason that it consisted of more than five acres and was not wholly surrounded by platted territory; but the annexation proceedings are not open to attack in this action. The proceedings to annex, upon their face, are regular. The action of the city council and the findings and decree of the court in the extension of the limits end the controversy as to whether the territory is rightfully within the limits of the city."

The following among many cases to be found illustrate the principle: Kuhn v. Port Townsend, 12 Wash. 605, 41 P. 923, 29 L. R. A. 445, 50 Am. St. Rep. 911; Frace v. Tacoma, 16 id. 69, 47 P. 219; The City of Albia v. O'Hara, 64 Iowa 297, 20 N.W. 444; St. Paul Gaslight Co. v. Village of Sandstone, 73 Minn. 225, 75 N.W. 1050; Mullikin v. The City of Bloomington, 72 Ind. 161; Powell et al. v. City of Greensburg, 150 id. 148, 154, 49 N.E. 955; Schriber v. The Town of Langlade, 66 Wis. 616; 29 N.W. 547, 554; C. C. C. & St. L. Ry. Co. v. Dunn, 63 Ill.App. 531; Sage v. City of Plattsmouth, 48 Neb. 558, 67 N.W. 455; People v. Smith, 131 Mich. 70, 90 N.W. 666; Judson v. City of Plattsburg, 3 Dillon (C. C.), 181, 184, Fed. Cas. No. 7570. Therefore, no objections of the first class will be considered.

The second problem presented is more difficult of solution. It involves the corporate integrity of the city of Topeka in the same manner as if the city's original organization were attacked, since every extension of corporate limits to include new territory is to that extent a reorganization. In the case of State of Iowa v. City of Des Moines, 96 Iowa 521, 31 L. R. A. 186, 65 N.W. 818, 59 Am. St. Rep. 381, it was held that an act providing for annexation to a city is one for the incorporation of the city, within the meaning of the constitutional provision against local or special laws for that purpose; and in the case of State, ex rel., v. Mineral Land Co., 84 Mo.App. 32, the syllabus reads:

"The express power given to cities of the fourth class by statute to extend their limits over adjacent territory is one of pro tanto incorporation."

In Cooley's Constitutional Limitations, seventh edition, page 363, it is said:

"In proceedings where the question whether a corporation exists or not arises collaterally, the courts will not permit its corporate character to be questioned, if it appear to be acting under color of law, and recognized by the state as such. Such a question should be raised by the state itself, by quo warranto or other direct proceeding."

In volume 1 of Dillon's Municipal Corporations, fourth edition, section 43a, the same rule is given:

"Where a municipal corporation is acting under color of law, and its existence is not questioned by the state, it cannot be collaterally drawn in question by private parties; and the rule is not different although the constitution may prescribe the manner of incorporation."

And in the case of In re Short, Petitioner, 47 Kan. 250, 27 P. 1005, the syllabus reads:

"Where a public organization, of a corporate or a quasi-corporate character, has an existence in fact, and is acting under color of law, and its existence is not questioned by the state, its existence cannot be collaterally drawn in question by private parties."

These general statements are inconclusive, however, because the expression "color of law" needs definition; and the question still remains, Will an invalid statute, or a statute invalid for particular reasons, afford "color of law"? If the legally equivalent phrase "mere semblance of legal right" (7 Cyc. 401) be substituted, there is stable ground for asserting that a statute apparently complying with the forms prescribed by the constitution for its enactment, and containing an intelligible declaration of the legislative will with respect to some matter fairly within the range of legislative cognizance, does make a semblance--a show, an appearance--of legal right. The argument, however, is frequently made, that without a law there can be no organization or annexation, and that an unconstitutional law is no law; and from these premises it is, of course, a short cut to the conclusion that annexation under an unconstitutional statute is utterly void and may be collaterally attacked at any time.

This reasoning utterly ignores the foundation of the rule forbidding collateral question of the existence of municipal corporations. The rule rests wholly in expediency, and operates in defiance of other legal doctrines. The consequences to society of allowing private collateral attacks upon the existence of cities would be intolerable and hence courts are concerned with the question, not if there exists a valid law, but if considerations of the public welfare shall forbid any inquiry as to whether or not there is a valid law; not if constitutional limitations have been transgressed, but if the public tranquillity and the effective administration of government require that the matter of validity,...