Doran v. Barnes

54 Kan. 238 | Kan. | 1894

The opinion of the court was delivered by

Horton, C. J.:

It appears from the agreed statement of facts that Osear D. Barnes, now complaining of the special assessment levied upon his property abutting on Douglas avenue, in "Wichita, lived in that city during the time of all the proceedings relating to the paving; that he signed the names of M. P. Barnes & Son to the petition for 275 feet; that 275 feet was a greater amount of abutting front feet than be had authority to represent; that he was doing business upon the street proposed to be paved; that he took the official paper of the city; that all the proceedings of the mayor and council concerning the paving were published therein; that he knew of the paving of the street; that he knew a special assessment would be made upon the abutting property to pay for the improvement; that while the question of paving of the street was being considered by the mayor and city council, he waited upon members of the council, and urged them to vote for asphalt paving; that two of the members waited upon by him changed their votes and voted for asphalt; and that the paving enhanced the value of his property. It also appears that he did not know of the defects in the petition presented to the mayor and council until a few days before the commencement of this action.

On the part of Barnes, it is insisted, as it was shown upon the trial that the petition was not signed by the owners of a majority of the front feet abutting on Douglas avenue, that the mayor and council acted without jurisdiction. (Gen. Stat. of 1889, ¶558; Laws of 1891, ch. 73, §6.) Section 6 reads:

“Provided, That no resolution to pave, macadamize or grade, repave, remacadamize or regrade any street, lane or alley, shall be valid unless a petition, asking for such improvement has been ordered spread upon the journal, which petition must be signed by the owners of a majority of the front feet abutting upon such street, lane or alley to be improved.”

The contention of the defendants below is, that the action is barred, because not commenced within 30 days from the time the amount of assessment was ascertained. Paragraph 590, Gen. Stat. of 1889, prescribes that

“No suit to set aside the said special assessments or to enjoin the making of the same, shall be brought, nor any defense to the validity thereof be allowed, after the expiration of 30 days from the time the amount- due on each lot or piece of ground liable for such assessment is ascertained.” (Laws of 1887, ch. 101, §1.)

It appears from the record that the total number of feet between the points to be paved on Douglas avenue fronting thereon is 6,757; that the petition presented to the city council asking for a portion of the street to be paved purported to represent 3,498 feet; that the petition, in order to have a majority of the feet represented between the points proposed to be paved, ought to have contained more than 3,378 feet; that the petition presented purported to represent 120 feet in excess of a majority. Counting the 275 feet signed to the petition by plaintiff below, it appeared, when tested in the trial court, that the number of feet actually represented upon the petition was less than a majority of the abutting front' feet. We have no inclination to change the ruling of this court that such inferior jurisdictions as boards of county commissioners and city councils, in their proceedings, are to be held to the strict limit of their authority as conferred and prescribed by the statute. (Comm’rs of Wyandotte Co. v. Barker, 45 Kas. 699, and the decisions cited.) But in this case it does not affirmatively appear upon the face of the petition that it is not signed by a majority of the owners of the front feet abutting on the street to be paved. The agreed statement of facts shows that in some instances the owner of the propérty did not sign his name to the petition in person, but the question was fairly presented to the mayor and city council that the signatures were made by authority. The mayor and council examined the petition. Upon the hearing thereof, they found that it was signed by the owners of a majority ^of the abutting front feet, even after omitting 100 feet therefrom. With this omission, .there was 3,398 feet represented. They ordered the petition spread upon the journal.

street paving-collection-11 mencemecnt?’ At the time the amount due on each lot or piece of ground liable for the assessment was ascertained, all the proceedings relating to the paving and assessment were apparently regular and valid. We are therefore of the opinion that ¶ 590 of Gen. Stat. of 1889 is applicable, and that this-action ought to have been commenced in the court below within 30 days from the time the amount of the assessment was ascertained. (City of Topeka v. Gage, 44 Kas. 87.) In that case the fraud which rendered the proceedings null and void was unknown to the lot owner at the time the assessment was ascertained, and it was urged, on account of the concealment of the fraud, that the 30 days’ statute of limitations did not apply. This court held that position not tenable. In this case the lot owner had the opportunity, at the time the petition was presented to the mayor and council for consideration, to examine and ascertain whether the parties signing the same acted with authority. He also had ample opportunity, prior to the time that the amount of the assessment was ascertained, to have called the attention of the mayor and city council to any insufficient signing. He did not do this, but waited more than 30 days after the assessment was ascertained before attacking the petition or any of the proceedings. (Wahlgren v. Kansas City, 42 Kas. 243; Hammerslough v. Kansas City, 46 id. 37, 41; Lynch v. Kansas City, 44 id. 453; Marshall v. City of Leavenworth, 44 id. 459.

The equities in this case are against the lot owner. He was anxious to have the portion of Douglas avenue referred to in the petition paved. He signed the petition to have the work done. He was so anxious to have it done that he misrepresented to the mayor and council the actual amount of front feet abutting upon the street controlled by him. He wanted asphalt used for paving, and urged upon two members of the city council to vote for this paving; the improvement enhanced the value of his lots; and then, by legal proceedings, he attempted to throw upon the property owners of Wichita the expense of improving his own property. He makes no complaint of the work, which he was so anxious to have done, but, on account of defects shown upon the trial, attempted to shift upon others the burden which fairly and justly should be borne by himself. This court has ruled that a tax deed void upon its face does not start the statute of limitations, but has also ruled that if the tax deed is regular and valid upon its face, the limitation of the statute applies, even if the tax proceedings are not valid. (Jordan v. Kyle, 27 Kas. 190; Edwards v. Sims, 40 id. 235; Smith v. Jones, 37 id. 292.)

The judgment of the district court -will be reversed, and the cause remanded, with direction to the trial court to render judgment upon the agreed statement of facts in favor of defendants below, plaintiffs in error here.

All the Justices concurring.