3 Kan. App. 319 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
This action was brought by the county attorney of Wilson county in the name of the state of Kansas, to restrain and enjoin the mayor and council of the city of Neodesha from contracting any more debts-, and issuing scrip therefor, to build sidewalks or cross-walks over and along the streets in Neodesha, a city of the third.class. The petition was filed in the district court of Wilson county, alleging the bonded indebtedness of the city, the amount of floating indebtedness, and the value of property of all kinds in the city subject to taxation; that for all the
The first objection raised by the demurrer is that the plaintiff has not the legal capacity to sue; that the state is not the real party in interest, and hence the suit cannot be maintained in the name of the state by the county attorney. This objection is not tenable.- If the mayor and council were doing or threatening to do unlawful acts in violation of the rights of the public, and the peace and good order of the city would be disturbed by such unlawful acts, the attorney-general or the county attorney is the proper officer to interfere in the name of the state to prevent the consummation of the' impending evil which will result from the carrying into effect of the unlawful acts of public officials. (Craft v. Comm’rs of Jackson Co., 5 Kan. 518 ; Bobbett v. The State, ex rel., 10 id. 9; Bartlett v. The State, 13 id. 99 ; The State, ex rel., v. Faulkner, 20 id. 541; The State, ex rel., v. Comm’rs of Marion Co., 21 id. 419.)
The vital question in this case is : Does the petition show that the mayor and council were doing or threatening to do any act or thing not authorized by law?
“35. The mayor and council of each city governed by this act shall have the care, management and control of the city and its finances, and shall have power to enact, ordain, .alter, modify or repeal any and all ordinances not repugnant to the constitution and laws of the state,.and such as it shall deem expedient for the good government of the city, the preservation of the peace and good order, the suppression of vice and immorality, the benefit of trade and commerce, and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be necessary to carry such power into effect.
“36. The cities coming under the provisions of this act in their corporate capacities are authorized and empowered to enact ordinances for the following purposes, in addition to the other powers granted by this act: 1st. To levy and collect taxes for general revenue purposes, not to exceed 10 mills on the dollar in any one year, on all the real, mixed and personal property within the limits of said cities, taxable according to the laws of this state. 2d. To open and improve streets, avenues and alleys, make sidewalks and build bridges, culverts and sewers within the city, and for the purpose of paying for the same shall have power to make assessments in the following manner, to wit: First. For opening, widening and grading all streets and avenues, and for all improvements of the squares and areas formed by the crossing of streets, and for building bridges, culverts and sewers, and footwalks across streets, the assessments shall be made on all taxable real estate within the corporate limits of the city, not exceeding 10 mills on the dollar, for these purposes, in any one year. Second. For making and repairing sidewalks, macadamizing, curbing, paving and guttering, the assessments shall be made on all lots and pieces of ground abutting on the improvements, according to the front foot thereof.”
In accordance with the provisions of the statute re
It is not claimed by the plaintiff that the mayor and council were not authorized to build sidewalks and street crossings in the city, but that the indebtedness of the city had already reached the limits to which the mayor and council could contract, and that they were not authorized to build sidewalks and street-crossings and issue the warrants of the city to pay for the same out of the current fund of the city; that none of the sidewalks or cross-walks are necessary for the safety or security of the people, and that the question of the building of said sidewalks and cross-walks and creating said indebtedness has never been authorized by a vote of the people of said city.
The mayor and council are the only competent. authority to determine what sidewalks, street cross-.
“First. For opening, widening and grading all streets and avenues, and for all improvements of squares and areas formed by the crossing of streets, and for building bridges, culverts and sewers, and footwalks across streets, the assessments shall be made-on ali taxable real estate within the corporate limits of the city, not exceeding 10 mills on the dollar, for-these purposes, in any one year. Second. For making- and repairing sidewalks, macadamizing, curbing, paving and guttering, the assessments shall be made-on all lots and pieces of ground abutting on the improvements, according to the front foot thereof.”’ (Gen. Stat. 1889, ¶ 959.)
We do not think the mayor and counoilmen' are prohibited from making all needful and necessary improvements or repairs on the streets and building sidewalks and street-crossings by reason of want of ready, funds to pay for the same. They are not limited in the amount of indebtedness that they may
“All warrants shall be drawn to the order of the person or persons entitled to receive the same, and shall specify the nature of the claim or service for which they were issued, and out of what fund payable ; and the term ‘warrants/ as used in this act, shall be understood to include all orders of any kind or description authorized by law to be drawn on public treasurers for money payments.”
Sections 6 and 7 of the same chapter read:
“ Sec. 6. It shall be the duty of the treasurer of any county, city, township, school district or board of education to pay on presentation any warrant properly drawn on any fund in his custody by virtue of his office, and when paid write across the face of such warrant the word ‘paid/ in red ink, and sign the same : Provided, That there is- sufficient money in his possession belonging to the. fund upon which such warrant is drawn to pay the same.
“Sec. 7. In case there is not sufficient money in the hands of such treasurer to pay any warrant when presented, he shall indorse thereon a proper registered number, in the regular order of its presentation, and the words, ‘Presented and not paid for want of funds/ with date, and sign said indorsement; and he shall record in. his warrant register the number, amount and date of all such warrants, to whom payable, and the date when presented for payment, and their registered number as indorsed thereon, and such warrants shall be paid in the order of their presentation as shown by such register; and no warrants shall be received for taxes by any county treasurer unless he shall have in cash a sufficient sum to redeem all warrants having such priority over the warrants so offered for taxes.”
The ordinances attached to the plaintiff’s petition provide that “when the sidewalks have been built by
It is urged by the plaintiff that the mayor and council are threatening to let contracts and make the improvements complained of, and create the indebtedness therefor, and pay for the same out of the money raised by taxation for general revenue purpo'ses, and in violation of the constitution, which prohibits the diversion of money raised by taxation from the object for which it was levied. It is true the petition alleges that they are threatening and are about to let contracts, create the indebtedness, and issue scrip on the current fund for making the improvements. We must assume that the mayor and council will not issue warrants in any other manner than authorized by chapter 249, Laws of 1891, which shall specify the nature of the claim or service for which they were issued, and out of what fund payable. The ordinances provided for making assessments to pay for the improvements, and they are a part of the petition and must be con
Upon a fair construction of the petition and the ordinances thereto attached, and the law, we do not think there will be any attempt to divert the money
The judgment of the district court is affirmed.