93 Kan. 557 | Kan. | 1914
The opinion of the court was delivered by
The plaintiff sued the city for damages for personal injuries resulting from the collapse of a bridge. The city defended on the ground that the bridge was not within the city limits. The defendant prevailed and the plaintiff appeals.
In order to show that the limits of the city did not extend far enough westward to include the bridge, the defendant introduced in evidence the ordinance of 1905. Presumptively the ordinance was valid, the existence of such facts as were essential to its validity was to be presumed, and the ordinance was sufficient to make a prima facie case in favor of the defendant, even if its corporate organization had been attacked directly by the state in an action brought for that purpose. (The State, ex rel., v. City of Atchison, 92 Kan. 431, 140 Pac. 873.) The plaintiff asserts, however, that the ordinance was void. The defendant replies that it can not be required to litigate that subject with the plaintiff, either upon an issue of law or an issue of fact raised collaterally to a personal-injury suit.
The plaintiff says the cases cited were all cases in which territory had been annexed and corporate boundaries enlarged, while in this case the city undertook to exclude territory from its corporate limits. The distinction does not render the principle involved inapplicable. It was pointed out in the Dwyer case, and in others following it, that the enlargement of corporate limits to include new territory is to that extent a reorganization, and an attack upon reorganization involves corporate integrity the same as if original organization were questioned. A reduction of corporate limits by the exclusion of territory is to that extent a reorganization, and an attack upon reorganization effected in that way involves corporate integrity the same as if original organization were assailed.
The plaintiff says the ordinance of 1905 was enacted without' color of law and consequently that it should be disregarded by any court which encounters it. This statement does not sound the controversy. The question here is whether the bridge was outside the corporate boundaries of the city. The proof shows that some five years before the collapse of the bridge, which occurred in September, 1910, the city limits had been contracted under color of an ordinance duly passed and published and acquiesced in by the public and by the law officers of the state. The ordinance may be valid or invalid, but it furnishes color of law for the present corporate organization (Railway Co. v. Lyon County, supra), and for réasons of public policy the plaintiff can not disorganize the city by a collateral attack made in this suit.
“The rule rests wholly in expediency, and operates in defiance of other legal doctrines. The consequences to society of allowing private collateral attacks upon the existence of cities would be intolerable, and hence courts are concerned with the question, not if there exists a valid law, but if considerations of the public welfare shall forbid any inquiry as to whether or not there is a valid law; not if constitutional limitations have been transgressed, but if the public tranquillity and the effective administration of government require that the matter of validity, or invalidity, shall be ignored and a situation of affairs be arbitrarily recognized as if it were legal, whether in fact it be so or not.” (70 Kan. 249.)
The result is that for all purposes of this case the bridge is not within the city.
The bridge was of great convenience to the public, including the inhabitants of the city, and the city officials, on occasions, inspected it and contributed to
The acts of the city in inspecting the bridge and in contributing to its maintenance in a safe condition merely indicated a desire to promote the public convenience. There is no proof that anybody was induced to use the bridge under the belief that if he were injured the city would make good the damages. The ordinance of 1905 placed the bridge outside the city and in the body of the county. The county records disclosed that the bridge was one for whose defects the county was responsible. The attitude of the city toward the bridge having been declared in the most formal and conspicuous manner possible, by ordinance duly enacted and published, no ground existed for assuming that the legal consequences of the ordinance were to be nullified by occasional and incidental acts of lesser solemnity. Beyond this, however, the city officials could not “assume control” of a bridge beyond the corporate limits and thus make the corporation liable in damages for injuries resulting from its instability, and if the mayor and council should attempt to do so, even by ordinance, the city would not be estopped to deny liability on the ground of lack of corporate power to enact the ordinance.
“A pedestrian can not recover damages for injuries due to the defective and negligent construction of a sidewalk outside the legal limits of the city. The fact that the city supposed at the time the walk was constructed that the city limits had been legally extended to include the street, while in fact that extension had been declared to be illegal and void prior to the accident, does not give the pedestrian any right to charge her injuries to the city.
“Where the sidewalk was not at the time the pedestrian was injured within the city limits, the city was not estopped from denying that it was, because of the fact that it had by ordinance ordered it to be con*562 structed. The ordinance was ultra vires, and if the city-had no power to enact it no act of its can have the effect to estop it to allege its want of power to enact such ordinance.” (Stealey v. Kansas City, 179 Mo. 400, syl. ¶¶ 1, 4, 78 S. W. 599.)
In this state a city has no corporate power except such as the legislature confers upon it. Its corporate duties are measured by its corporate powers. The duty to maintain bridges within the city limits is the correlate of the power to maintain the streets of the city in a condition safe for public travel and to levy taxes and impose local assessments for that purpose. (Comm’rs of Shawnee Co. v. City of Topeka, 89 Kan. 197, 18 Pac. 161.) This power ends at the city limits. With the termination of the power the duty ceases, and there can be no liability without a breach of duty. For roads and bridges in territory lying outside the limits of cities the legislature has made other provision. A city can not by its own ordinance add to its power over public ways any more than a man can by taking thought add a cubit to his stature. Where the act undertaken is beyond the statutory power of a city nothing the city can do can place the act within its power. All persons are put upon absolute knowledge of the public powers of municipal corporations, and the corporate body, whose treasury must supply the funds to pay judgments for damages in personal-injury cases, is no more estopped to deny the validity of unauthorized or illegal acts of its officers in assuming responsibility for the safety of a bridge lying a few feet or a few yards beyond their jurisdiction than it would be estopped if the bridge lay in some remote part of the county, or in some other county.
Cases may be found in which it was held that municipal corporations were estopped to deny that they had assumed jurisdiction over bridges, but the bridges in controversy lay within the city limits, and the question was not one of power but whether or not lawful power had been extended as a matter of fact. Cases are
“An essential fact to a recovery by the plaintiff was that the place where the accident occurred was within the limits of the city, and one which the city was bound to make safe for public travel.” (p. 596.)
It may be observed that the word “and” in this quotation does not mean “or.” The place must not only be within the city limits but it must also be one which duty requires the city to maintain properly. A city is seldom required to keep every part of all its public ways in good condition for travel, and very often private bridges are brought within city limits for which the city is not responsible until it assumes control over them in some way.
A superficial critic might find fault with a system of law which prohibits the plaintiff from disputing an unauthorized act of the mayor and council while it allows the city itself to repudiate unauthorized acts of the same governing body. Both rules, however, are well founded. Experience has demonstrated that it is fin-wise and unjust to charge corporations with delinquencies of their officers and agents in matters outside the scope of their authority, and this rule is the same for public corporations, private corporations, and private persons. The plaintiff is forbidden to question
The judgment of the district court is affirmed.