94 Kan. 509 | Kan. | 1915
The opinion of the court ivas delivered by
Property owners affected by a special assessment for the construction of certain sewers united in a suit to enjoin the city from issuing improvement bonds and from causing any assessments or levies to be made to pay for the cost of the construction of such sewers. The amended petition alleged that ordinance No. 3036, which purported to provide for the main sewer, did not bound or describe any portion of the city. Also, that on November 16, 1909, an ordinance was passed declaring it necessary to con.struct certain sewers. A copy of this ordinance shows that it provided for the construction of “the sewers hereinafter described comprising District S.ewer No. 9. in Sewer District No. 9 as a part of the foul water sewerage and drainage of the city,” and described dis
While it is alleged that by ordinance No. 3256 the city ascertained, determined and attempted to levy the amounts to be paid on the lots of the respective plaintiffs for sewers in district No. 9, and that the former ordinances referred to in the plaintiffs’ pleadings had been wholly abandoned, an inspection of such ordinances shows that No. 3036 created the district, No. 3058 declared the necessity of building the sewers, and No. 3231 determined the amount of special assessments necessary to pay the cost of the sewer described in No. 3058, also “apportioning, ascertaining, charging and assessing the amount due on each lot liable for such assessment.” No. 3256 levied the ten annual installments of such special assessments and prescribed the sum due each year, “The special assessments having been heretofore apportioned by ordinances of this city against the property herein described.”
Ordinance No. 3231 was passed December 20, 1910, and published December 24. Suit was begun January 25, 1911. The statute provides that no such suit may be maintained “after the expiration of thirty days from the time the amount due on each lot or piece of ground liable for such assessment is ascertained.” (Gen. Stat. 1909, § 994.) Ordinance No. 3231 required the city clerk immediately to mail to the property owners affected a notice of the amount charged against their property, giving such owners thirty days’ notice that improvement bonds payable in ten annual
The amendment to the petition also alleged that after December 28, 1910, the plaintiffs received notice of additional assessments, as shown by exhibits B to L, inclusive, which were ordinances determining and ascertaining the assessments for certain lateral sewers.
As to the assessments made by ordinances Nos. 3244, 3233, 3234, 3235, 3236, 3245, 3237, 3238 and 3239, all published on January 6 or 12, the pleadings filed by the plaintiffs stated sufficient facts to constitute a cause of action.
It is contended that as to Nos. 3247 and 3248, published two days after the suit was brought, the ^action was premature, and attention is called to Mason v. Independence, 61 Kan. 188, 59 Pac. 272, and Baldwin v. Neodesha, 83 Kan. 263, 111 Pac. 185. The first of these cases was decided before the enactment of the statute under which this suit was brought. (Laws 1905, ch. 113, § 1, Gen. Stat. 1909, § 1040.) The second involved assessments in a city of the second class, and the statute applicable is not mentioned. Here the provision is that an injunction may be had by “any person against whose property any . . . special assessment . . . may be levied or charged, or whose property or rights may to any extent be injuriously affected by any such illegal act threatened or’ about to be done by any city officer.” (§ 1040.) The petition alleged that the sewer had already been constructed, and “for the construction of said' main trunk sewer and the laterals herein mentioned, which at this time are not completed, the said commissioners of said city have agreed to pay many thousands of dollars.” The amendment avers, among other things, that various assessment ordinances had been published, including those now under consideration. The petition was filed January 25, 1911, the amended petition February 11, 1911, the amendment to the petition February 18,1911, and the supplemental petition March 28, 1911. An amended petition must usually be considered as of the date the original petition was filed. (Brown v. Galena Mining and Smelting Co.,
It is argued that whatever causes of action may be shown by the pleadings, if any, are improperly joined, and it is suggested that each property owner affected by the assessment for each alley or lateral sewer is in no way affected by those whose property is assessed for a separate and distinct lateral, and that unless some of the plaintiffs own property in more than one of the blocks affected by these sewers they could not enjoin assessments of property owned by another plaintiff in another block. Section 88 of the civil code is invoked, which permits the plaintiff to unite several causes of action in the same petition, but requires that they must affect all the parties to the action except in actions to foreclose mortgages and other liens, and authorities in support' of the rule provided by this section are cited. In response to this counsel for the plaintiffs invokes section 1040 of the General Statutes of 1909, providing that in actions of this kind “any number of persons whose property or rights may be charged or affected injuriously by such threatened illegal or unauthorized act may join as parties in the application to obtain such injunction.” This clause follows the provision that any person against whose property any tax, special assessment or burden may be levied or whose property rights may be injuriously affected may enjoin. It is clear that if an assessment levied by one ordinance affected the property rights of numerous persons they could all join, although one had no interest in the property owned by
It must be held, therefore, that in so far as the plaintiffs are separately affected by each of these lateral assessment ordinances, they must proceed without uniting with those not likewise affected.
It is insisted that ordinance No. 3036 does not describe or circumscribe any certain territory of the city and does not bound anything and is “an absolute failure.” Whatever a study of the metes and bounds and lots and blocks set forth in this ordinance might show, it is unnecessary to enter upon it, for the reason that the statute of limitation relieves us from that burden.
The pleadings taken together contain sufficient alie-; gation to warrant the introduction of evidence touching