Atchison, Topeka & Santa Fe Railway Co. v. Board of County Commissioners

82 P. 519, 72 Kan. 13, 1905 Kan. LEXIS 300

• Court: Supreme Court of Kansas
• Decided: October 7, 1905
• Docket: No. 14,251
• Status: Published

Opinions

The opinion of the court was delivered by

Porter, J.:

The Atchison, Topeka & Santa Fe Railway Company brought this action to recover certain taxes which it claimed were illegal and which had been paid under protest. The taxes amounted to $837.72, and were levied for general city purposes by the city of Emporia upon property of the plaintiff located in Ruggles’s addition to that city. The board of county commissioners of the county of Lyon, the city of Emporia and the treasurer and county clerk of Lyon county were made defendants. A jury was waived and the case tried by the court, which found that the territory subjected to taxation was a part of the city of Emporia, and rendered judgment against plaintiff for costs. The railway company brings the case here for review. The only errors assigned are that the court, erred in rendering judgment in favor of defendants, and in denying the motion for a new trial.

The legislature, by an act passed in 1877, vacated certain streets in Ruggles’s addition to the city of Emporia. (Laws 1877, ch. 196.) Afterward, on March 18, 1884, the city of Emporia, by an ordinance, attempted to annex this same addition to the city.

Plaintiff in error asserts that there is but one question in the case, and insists that this question is whether or not Ruggles’s addition was legally annexed, basing its argument wholly upon the claim that the ordinance of March 18, 1884, attempting to annex the territory was inoperative and void because the land' then was unplatted property — in effect, acre property, lying outside the city — and that “without the consent in writing of the owners of a majority of the whole number of acres owned by residents of Kansas” it could not be annexed simply by ordinance. The constitutionality of the ordinance is also attacked because the enacting clause does not contain the name of Ruggles’s addition. Defendants in error, on the contrary, claim that the act of the legislature of 1877 never vacated Ruggles’s addition; that, if it did, the ordinance of March 18, 1884, being valid, operated to annex the addition to the city and leave the territory in the same situation as though there had been no vacation.'

Broadly speaking, there is but one question here, which may be stated as follows: At the time of the levy of the taxes sued for was Ruggles’s addition a part of the city of Emporia? This single question is easily disposed of, in our view of the effect of chapter 196 of the Laws of 1877. The title of the act is as follows :

“An act to vacate the town of. Elmdale, and Wood’s addition to Cottonwood Falls, and certain streets and alleys in the town of Cottonwood, Chase county, Kansas, and the town of Republic City, in Clay county, Kansas, and the streets in Ruggles’s addition to the city of Emporia, in Lyon county, Kansas.”

Section 2 reads as follows:

“That the streets in Ruggles’s addition to the city of Emporia, in the county of Lyon, in the state of Kansas, be and the same hereby are vacated; provided, that the street on the east of said addition and the street on the west of said addition shall not be affected by this act.”

It is clear that the legislature did not by this act intend or attempt to vacate any part of Ruggles’s addition to the city of Emporia except the streets. This appears from the language of the title of the act as well as that of section 2. In the title a plain distinction is made between the vacation of platted towns and additions, such as “Wood’s addition to Cottonwood Falls,” and the vacation merely of “streets and alleys” in another platted town and “the streets” of Ruggles’s addition. In section 2 the words declaring the vacation follow the title and refer only to the streets of Ruggles’s addition. Without determining what effect the vacation of the entire addition would have upon the lands embraced therein, it follows from what has been said that no part of Ruggles’s addition was vacated except the streets referred to in the act, and that this left the addition within and a part of the city of Emporia. To arrive at this conclusion we have only to give the words of the statute their ordinary meaning; and this should be done, “unless, from a consideration of the whole act, it apears that a different meaning was intended.” (The State v. Bancroft, 22 Kan. 170, 201.) The citation of additional authorities seems unnecessary. The judgment is affirmed.

All the Justices concurring. (84 Pac. 1031.) SYLLABUS BY THE COURT. Municipal Corporations — Annexation of Territory — Collateral Attack. Where a city of the second class has attempted by an ordinance to annex certain territory, and in pursuance thereof has exercised municipal authority over the same for eighteen years, levying and collecting taxes thereon and creating it in all respects as an integral part of the municipal organization, the validity of the ordinance cannot be attacked in a collateral proceeding by a private party who seeks to recover taxes levied upon property in such territory upon the ground that it is not a part of the city.