6 Kan. 274 | Kan. | 1870
The opinion of the court was delivered by
The city of Leavenworth caused some grading to be done on the land of Laing and Haines, two of the plaintiffs below, and levied a special tax thereon to pay for said grading. The plaintiffs refused to pay said special tax, and the treasurer of said city then sold said lands for the non-payment thereof.
Por the sake of convenience, (not that it is the most logical,) we will divide and consider the questions in this case, as follows: 1: Was the said sale valid? 2: Was the special tax valid ? 3 : And if said sale and said spe
All the transactions in the case at bar, the contract, the grading, the levying of the special tax, the sale of the land for such special tax, and the issuing of the sale-certificate, were had in the year 1866, under the laws of 1864, and under so much of said Ordinance No. 90 as was valid. At the time these transactions were had, the city council of Leavenworth had made no provision under the law of 1864, for the sale of lots or land for special taxes. Therefore it is our opinion that the said sale, and the certificate founded thereon, are absolutely void.
The city of Leavenworth claims that she is not liable under any circumstances. There are other irregularities complained of, besides the one that there was no street or road running through the plaintiffs’ land. These irregularities are as follows:
Without commenting specially on any of these supposed irregularities or defects, we would say, that the city had full and ample power under the act of 1864, to grade streets within the corporate limits, and that it did not require a vote of two-thirds of the city council to authorize the grading to be done. The city took possession of the land when the grading was done, and claimed that it was a street; the city employed Dugan to do the grading; it accepted the bond and the contract, as binding upon the parties thereto; and the city accepted and approved the grading after it was done. All this was within the general scope of their authority. It is provided for by the city charter: §3, chap. 69, Laws of 1864, p. 126, et seq.; and the city is now estopped from denying the validity of the contract. It cannot now say that the grading was not done on a street; (Mayor v. Sheffield, 4 Wallace, 189;) nor canfihe city set up any of the supposed irregularities, to defeat the contractor’s recovery. (See authorities cited in briefs of counsel, and particularly in brief of counsel for Michael Jordan.) Whether the property was appraised or not, and whether too great or too small an area was taxed, cannot possibly affect this case. The city
The decision in the case of Leavenworth vs. Rankin, 2 Kas., 357, is not applicable to the ease at bar. That decision was under a different statute, and under a different ordinance; and the decision was correct. The city council in that case transcended their powers; they went beyond the scope of their authority, violated their own charter — a general statute, of which every one must take notice, and which the contractor is presumed to have known at the time.
"While Dugan, in this case, was bound to know the law as well as the city authorities, yet he was not bound to know that a certain supposed street, which was in the possession of the city, and claimed by the city to be a street, and used as such, had never been legally condemned, as a street, under the right of eminent domain, or had never been' legally dedicated as a street by the proprietor of the land, or had never become a street by usage and prescription. There is also a difference between executed and executory contracts. A city will generally be relieved from performing an illegal or void executory contract before any part of the same has been executed; while on the other hand a city will in many cases be compelled to perform such a contract, if it has already been executed by the other party, and if in equity and good conscience, the city ought to perform it.
The judgment of the court below is affirmed.