The City of Wichita v. The Board of Education of The City of Wichita

• Decision Date: 07 July 1914
• Docket Number: 19,096
• Citation: 92 Kan. 967,142 P. 946
• Parties: THE CITY OF WICHITA, Appellee, v. THE BOARD OF EDUCATION OF THE CITY OF WICHITA, Appellant
• Court: Kansas Supreme Court

142 P. 946

92 Kan. 967

THE CITY OF WICHITA, Appellee, v. THE BOARD OF EDUCATION OF THE CITY OF WICHITA, Appellant

No. 19,096

Supreme Court of Kansas

July 7, 1914

Decided July, 1914.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. SCHOOL PROPERTY--Not Exempt from Special Assessments for Improvements. Comm'rs of Franklin Co. v. City of Ottawa, 49 Kan. 747, 31 P. 788, followed, and held that by section 1 of article 11 of the constitution school property is not exempt from special assessments for public improvements.

2. SAME--City May Maintain Action to Recover Such Special Assessments. A city of the first class may maintain an action against the board of education of such city to recover special assessments levied against school property for improvements.

S. B. Amidon, Jean Madalene, and D. M. Dale, all of Wichita, for the appellant.

Earl Blake, city attorney, and R. C. Foulston, assistant city attorney, for the appellee.

OPINION

PORTER, J.

The city sued the board of education to recover certain special assessments levied against school property for improvements, including pavements, sewers and drainage. The defendant demurred to the petition; the demurrer was overruled. Electing to stand upon its demurrer the defendant appeals.

The principal question, as we view it, is whether property held by the school board for school purposes is subject to the payment of special assessments. The defendant prefers to state the question in the follow-in form:

"May a city amerce its own property by special assessments in contravention to a legislative inhibition providing that no property held by a school board for a city, 'shall be taken in any manner for any debt due from the city' or may a man sue himself?"

The defendant apparently starts with the assumption that special assessments levied upon property benefited is a tax and that the action is in conflict with the constitution and the statutes. The constitutional provision is:

"The legislature shall provide for a uniform and equal rate of assessment and taxation; but all property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, . . . shall be exempted from taxation." (Art. 11, § 1.)

The statute declares "all property held by the board of education for the use of public schools shall be exempt from taxation, and shall not be taken in any manner for any debt due from the city." (Gen. Stat. 1909, § 7579.)

Since Hines and others v. The City of Leavenworth and others, 3 Kan. 186, this provision of the constitution has been held not to apply to special assessments. See cases and authorities cited in Comm'rs of Franklin Co. v. City of Ottawa, 49 Kan. 747, 31 P. 788, where it was held that a city of the second class has the power to levy special assessments for improvements of a street in front of a courthouse square in the city, and this without the consent of the board of county commissioners, and where a claim for such improvements is disallowed the district court may allow it on appeal and the judgment must then be paid as other judgments against a county. In the case of Jefferson County v. Oskaloosa, 80 Kan. 587, 102 P. 1095, the county was held liable for the payment of an assessment levied by the city for the cost of paving and curbing streets abutting on the public square.

The language of the statute which declares that property held by the board of education shall not be taken in any manner for any debt from the city has no bearing upon this question. By this action to recover the costs of the special assessments the property of the school board is not sought to be taken in any manner. On the contrary, the purpose is to hold...