82 Kan. 4 | Kan. | 1910
The opinion of the court was delivered by
The original opinion (81 Kan. 328) shows that the cause of action presented by the petition was based on the passage of the repealing ordinance. This position, it was said, was finally abandoned in this court, and error was predicated upon a theory not embraced in the petition. In a petition for a rehearing it is said the plaintiff did not abandon the claim that the passage of the repealing ordinance gave a cause of action. The court accepted and acted upon the declaration of counsel for the plaintiff made in an addendum to the reply brief which reads as follows:
“The plaintiff in this case does not rely on the passage of the ordinance as a cause of action, but on the ministerial act of publication, and the subsequent repudiation of the contract by the city and its arbitrary refusal to proceed with the contracts [and] approve its bonds and plans, without which the plaintiff could not lawfully enter upon the streets.”
The italics are those of the brief-maker.
Ordinarily the court must decline to give its opinion upon questions which have been withdrawn from its consideration. Since, however, in this instance the only cause of action stated in the petition was for the passage of the repealing ordinance, and the- petition for a rehearing indicates a desire for a ruling upon the sufficiency of the petition in its true aspect, the court will state its views.
In passing the repealing ordinance the mayor and council were for the time the legal equivalent of the legislature of the state of Kansas. The repealing ordinance was a public law promulgated by the sovereign
Other matters presented by the petition for a rehearing require no further notice, and the petition is denied.