46 Kan. 738 | Kan. | 1891
Opinion by
The plaintiffs in error commenced an action in the district court of Wyandotte county to set aside certain proceedings theretofore had, by ■which it was attempted to make their land, consisting of 30 acres devoted to agriculture and horticulture, a part of the city of Kansas City, by an extension of the limits of said city; and also commenced an action against the county treasurer of said county to enjoin the levy and collection of the taxes of 1890 on said land. The petitions specifically alleged that, on the 30th day of December, 1887, the city of Kansas City attempted, by ordinance duly published, to extend its boundaries so that the same should include the territory of the original cities of Kansas City, Armourdale, and Wyandotte, together with all the ad-, ditions thereto, and all of the territory embraced in the original consolidated city of Kansas City, Kas., and all the territory within certain boundary lines fully described in said ordinance; that said ordinance was attempted to be passed on the 30th day of December, 1887; was approved on the 4th day of January, 1888, and was duly published in the Kansas Pioneer, the official paper of said city, and designated in said ordinance, within 20 days after its passage; that, after the publication of said ordinance, the mayor of said city, at the first regular term of the district court of Wyandotte county, Kansas, commenced after said 20 days, presented to the court a copy of said ordinance, together with the affidavit showing the proper publication thereof, which were filed with the clerk of said court; and thereupon said court did determine that said publication had been made as by law required, and by its judgment approved, but modified, said ordinance, first hearing all objections, if
To these petitions the defendant city filed demurrers, and upon the hearing of these demurrers it was agreed that the petitions should be amended by incorporating a statement therein, as follows:
“All land brought into said city under said proceedings — taken in its entirety — composed a continuous body of land lying contiguous to the prior limits of said city, but considering the portions or tracts owned by different parties as separate tracts, they did not all adjoin the city, and the land of the plaintiffs, so considered separately, did not so adjoin the city.”
These demurrers were sustained by the district court, and the plaintiffs in error bring the ease here for review. They claim that the statute did not authorize land situated as theirs is to be brought within the city limits; that the statute is unconstitutional and void as an attempted delegation of legislative power; that, if their land is property within the city limits, it must be taxed as agricultural land, and not as city property.
The act of the legislature first authorizes “territory adjoining the city limits that has been subdivided into lots, blocks,
“Any city of the first class may enlarge or extend its limits or area by an ordinance specifying with accuracy the new line or lines to which it is proposed to enlarge or extend such limits or area. Within 20 days after the passage of such ordinance, the same shall be published in the city official paper, published in said city, to be designated in said ordinance. When said publication shall have been made, the mayor of said city, at the first regular term of the district court of the county in which said city is situated, commencing after said 20 days, shall present to said court a copy of said ordinance, duly certified by the clerk of said city under 'its seal, and also therewith an affidavit or affidavits showing the publication of said ordinance as hereinbefore provided, which said certified copy of said ordinance and said affidavits shall be filed with the clerk of said court. Thereupon said court shall determine whether said publication has been made as herein required, and shall then consider said ordinance, and by its judgment either approve, disapprove or modify the same, first hearing all objections, if any, and proofs, if any, offered by said city or persons affected by said ordinance. Should said ordinance be approved or modified by said court, then the limits or area of said city shall be enlarged or extended as therein designated, from the date of such approval or modification; but should it be approved entirely, or modified and approved, the judgment of said court shall stand, and the limits of such city shall be extended as is in said judgment specified, and the determination of the matter thus submitted to said court shall be final, and all courts of the state shall take judicial notice of the limits or area of such city, as thus enlai’ged or extended, and of all the steps in the proceedings leading thereto. The district court shall make a record of its finding and determination in the pi’emises, which shall be conclusive evidence of the facts so found and determined; and after the disapproval or modification of one ordinance, another or others may be passed and acted on.” (First-Class-City Act, §8.)
The land in question is about 30 acres, used for horticult
I. The controlling question in this case therefore is: Can the city limits be extended under the section of the law of 1887, above quoted, so as to include a tract of land that is part and parcel of a large, compact and contiguous body that does adjoin the prior city limits, although this particular piece does not so adjoin the city limits? This question we answer in the affirmative, because of these words contained in the section: “Any city of the first class may enlarge or extend its limits or area by an ordinance specifying with accuracy the new line or lines to which it is proposed to enlarge or extend such limits or area.” We think this expressly authorizes the city council to take into the limits of the city such land as adjoins the city, and such other land as adjoins land that adjoins the city, so as to make a continuous and compact body, as may be approved of by the district court as provided in the other provisions of the section. In other words, we think the proper construction to be given to the act of 1887 is this: First, the mayor and council have power to embrace within the limits of the city all land that has been subdivided into lots, blocks, streets, and alleys, without reference to the extent of the land so divided, if such platted land adjoins the city; this part of the section being framed on the theory that by so platting the land the proprietor himself establishes its character as city property, and assents to its absorption by the city. Second, the mayor and council have power to extend the limits of the city so as to embrace tracts of unplatted land not exceeding five acres, and exceeding five acres when the owner does not protest against such absorption. When the unplatted land is circumscribed by platted land that is taken
II. Their next contention is, that the part of the act of 1887 that confers upon the district court of the proper county the power to approve, disapprove or modify such an ordinance
III. This leaves the question of the legality of the taxes to be passed upon. This question was considered by this court in the case of Mendenhall v. Burton, 42 Kas. 570, and the cases now cited by counsel for plaintiffs in error were then commented upon. In addition to what was said in that case, it appears to us that when it is determined that the land of the plaintiffs in error is a part of the city of Kansas City, there must exist some extraordinary condition to exempt it from the payment of the ordinary city taxation. If the assessment was too high, resort Could have been had to the board of equalization, and possibly other remedies might have been used to have equalized its assessment. The rule is that all property situate within the city must bear its proper proportion of taxes, and must be assessed as city property. We regard the judicial determination of the district court of Wyandotte county, making this land a part of the city of Kansas City, as permanently fixing it as city property, and as such it must be assessed and taxed. It would breed unwarranted confusion with our assessments, and produce end
By the Court: It is so ordered.