City of Emporia v. Norton

13 Kan. 569

• Court: Supreme Court of Kansas
• Decided: July 15, 1874
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

In May and J une, 1871, the city of Emporia entered into two contracts, one for the curbing and guttering and the other for the macadamizing of Commercial street. The work was done under these contracts, was well and cheaply done, was accepted by the city, and was a valuable and lasting improvement. No estimate of the cost of the work was ever made by the city engineer, or submitted to the city council. In July, 1871, the city attempted to provide for the payment of this work by special assessment on the adjoining lots. At the time of these proceedings the following provision of the statute applicable thereto was in force:

“Sec. 31. Before the city council shall make any contract for building bridges or sidewalks, or for any work on streets, or for any other work or improvement, an estimate of the cost thereof shall be made by the city engineer, and submitted to the council; and no contract shall be entered into for any work or improvement for a price exceeding such estimate; and in advertising for bids for any such work, the council shall cause the amount of such estimate to be published therewith.” (Gen. Stat., p. 169, § 31.)

In consequence of the omission of this estimate the proceedings of the city council were without authority, and the collection of the contract-price by the assessments, so far at least as the lots of defendants in error are concerned, was a failure. In 1872 the legislature passed a special act validating these assessments. (Laws of 1872, p. 13, ch. 13.) It also passed a general law for cities of the second class, the 41st section of which is as follows:

“ Sec. 41. In case the corporate authorities of any city have attempted to levy any taxes or assessments for improvement, or for the payment of any bonds or other evidence of debt, which taxes, assessments, or bonds are or may have been informal, illegal or void, for the want of sufficient authority or other cause, the council of such city at the time fixed for levying general taxes shall relevy and reassess any such assessments or taxes in the manner provided in this act.” (Laws of 1872, p. 204.)

Under this section the city proceeded to make a relevy of these assessments, and this action was brought to restrain any further proceedings on the part of the city. The judgment in the district court was in favor of the lot-owners, and the city brings the question here for re-examination.

It is conceded that but for the legislation of 1872 the lot-owners would be entitled to their restraining order; but it is contended, first, that the special act made valid and legal the assessment of 1871, and second, that the relevy made the assessments valid and binding liens on the lots. A consideration of the second question is all that will be necessary, for it seems to us that the proposition therein contained is correct. This section was passed after the levy of 1871, and by its terms is manifestly applicable to a case like the present. Indeed we do not understand counsel as disputing that it is within the very letter of the statute, but the contention is, that to give to this section the sweeping and comprehensive construction that its language will permit is to bring it into conflict with §5 of article 12 of the constitution. That section of the constitution is as follows:

“Sec. 5. Provision shall be made by general law for the organization of cities, towns and villages; and their power of taxation, assessment, borrowing money, contracting debts and loaning their credit shall be so restricted as to prevent the abuse of such power.”

Upon this counsel for defendants in error argues —

“That there must be some restriction in any act of the legislature which purports to confer on cities the power of taxation or assessment, has been decided by this court; (Hines v. City of Leavenworth, 3 Kas., 204.) If the city council of any city can, by a simple relevy, under said § 41, cure any and all defects arising either from 'want of sufficient authority, or other cause/ then we say there is no restriction. If this court shall hold that the construction or effect claimed by the counsel for plaintiffs in error of said § 41 is the correct one, then a city council may disregard all restrictions, no matter how wise or salutary, or how well calculated for the protection of the property-owner, and may incur any and all manner of indebtedness, and when the taxpayer objects, and perhaps seeks his remedy in the courts, the council may let the matter rest till the next annual levy, make a relevy of the void tax, and straightway the whole thing is cured. Such a doctrine is monstrous, and cannot be the law.”

i. statutes; validity. Construction, 2. city-charter act of 1872, hi-3 curative laws. Hence counsel concludes that it is only valid so far as it “applies to cases of assessment or levy of taxes which were authorized by law in the first instance, but were void by reason of some irregularity or neglect to comply with the law regulating proceedings in such cases, and that as to such cases only can this §41 make valid a subsequent relevy or assessment.” It would seem to be conceded by this statement of counsel that this section was not intrinsically and t ... absolutely invalid, but only so in application to certain cases. Now it is well known that a statute may be attacked for unconstitutionality in more than one way. It may be so wholly and directly at variance with some constitutional provision that it is under all circumstances, and in all applications, absolutely void. A law granting a divorce, one reducing the terms of county officers to one year, and one making the state a stockhelder in a banking institution, are examples of such void enactments. Again, a legislative act may be entirely valid as to some classes of cases, and clearly void as to others. A law might be void as violating the obligation of existing contracts, but valid as to all contracts which should be entered into subsequent to its passage, and which would therefore have no legal force except such as the law itself would allow. (Cooley’s Const. Lim., 180.) And again, an act may be fairly susceptible of two constructions, one of which conflicts while the other is in harmony with the constitution. In the first case, the decision would be uniformly against the law, and all rights claimed to be derived therefrom. In the second, the decisions would vary according to the circumstances of the particular case for which the support of the law was invoked; while in the third, that construction which supports would be preferred to that which destroys the law. It seems to us that this section ^ , , - may be placed m the second class; that it is valid as applicable to certain cases, and invalid as to others. It purports to authorize a relevy in all cases of a prior insufficient levy. It is thus curative in its nature. But there are some things beyond the power of cure. As to these, it is invalid and inoperative. But purporting to cure it cures all within the power of cure. Nor should we look to this section for the restrictions contemplated by the section of the constitution heretofore quoted, but rather to the original act by which the power to levy was granted. If there were no sufficient restrictions in that, then that act was void, and there was ab initio a failure of power. But we should not expect to find in a merely curative act limitations and restrictions on an original grant of power. But what defects may a legislature cure? and is the defect in this case within the power of cure? Two or three things may be remarked. The original purpose for which the power of taxation was invoked was not one of the extraordinary, but one of the common purposes of municipal government. It was for the purpose of improving one of the thoroughfares of the city. As to the difference, if any, whicli exists between those two classes of cases, in the extent of the power to cure, see Hasbrouok v. Milwaukee, 13 Wis., 37, and the comments thereon, in the same court, by Chief Justice Dixon in the subsequent case of Mills v. Charleston, 29 Wis., 413; and see also Cooley’s Const. Dim., page 380, and note. Again, there is nothing inequitable in subjecting these lots to the payment of this assessment. The work, as it appears from the findings, was well and cheaply done, and was a lasting and valuable improvement. There was no fraud in the making of the contracts by which excessive and unjust burdens were imposed. There is no inequity in casting the burden of a street improvement upon the adjoining lots. There was no partiality or oppression in the appraisement of those lots. In fact, nothing appears to invalidate the proceedings except the mere omission of the engineer’s estimate. Again, this defect was one as to a matter which might have been omitted by the legislature in the first instance. There is nothing in the nature of things which requires that an estimate of the cost be made prior to the letting of the contract and the doing of the work. It may be a very proper precaution, but it' is within the unquestioned power of the legislature to authorize such improvements without it. “If the thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute.” (Cooley’s Const. Lim., 371.) In May v. Holdridge, 23 Wis., 93, Paine, J., says: “This rule must of course be understood with its proper restrictions. The work for which the tax is sought to be assessed must be of such a character that the legislature is authorized to provide for it by taxation. The method adopted must be liable to no constitutional objection. It must be such as the legislature might originally have authorized, had it seen fit. With these restrictions, where work of this character has been done, I think it competent for the legislature to supply a defect of authority in the original proceedings, to adopt and ratify the improvement, and to provide for a reassessment of the tax to pay for it.” In Mills v. Charleton, 29 Wis., 400, Dixon, C. J., referring to this case says: “It will be seen by examining the facts in May v. Holdridge, as stated on pages 95 and 96 of the report, that the original proceedings were as void for want of authority in the aldermen, as it is possible to conceive the original proceedings .to have been here; and yet the power of the legislature to legalize and authorize the reassessments was upheld. * * * The principle upon which these and other similar decisions rest, is, that the taxing power, when acting within its legitimate sphere, and unrestrained by positive constitutional provisions, is a far-reaching and unlimited power, which knows no stopping place nor moderation of force until it has accomplished the purpose for which it exists, namely, the actual enforcement and collection of the tax. It moves constantly forward to its object until that is accomplished, and, if turned aside by any obstacles or impediments, may again and again return to the same tax or assessment, until, the way being clear, the tax is paid or the assessment collected.” See also, Thomas v. Leland, 24 Wend., 65; Town of Guilford v. Supervisors Chenango Co., 13 N. Y., 143; Brewster v. Syracuse, 19 N. Y., 116; Grin v. Weissenbury School District, 57 Penn. St., 433; Musselman v. City of Logansport, 29 Ind., 533; Howell v. City of Buffalo, 37 N. Y., 267; State, ex rel., v. Mayor, &c., 34 N. J., 236; Dean v. Boochsenims, 30 Wis., 236; The People v. Halladay, 25 Cal., 300; Brevoort v. Detroit, 24 Mich., 322. In this last case, noticing the objections to the reassessment, the court says: “One is, that the original assessment being void there was no constitutional power in the legislature to order a reassessment. This however may depend upon the nature of the original infirmity. If the difficulty there was, that the sums assessed did not constitute any just or equitable charge for public purposes upon the property upon which it was sought to be imposed, it is quite clear that the legislature could not make it such a charge. But if the defect consisted in some irregularity of proceeding, or in some oversight in the law itself, in consequence of which a just and equitable claim'had failed to be legally imposed, there could be no good reason why the legislature should not retrospectively supply the omission or cure the irregularity.”

The case may then be summed up thus: The city had the power to make these improvements. They were among the ordinary objects of municipal government. It is equitable that the adjoining lots should bear the burden of such improvements. There was no fraud in the contracts,, no excessive, oppressive, expenditures made. There was no inequality or injustice in the apportionment. The defect was on a matter which the legislature might have dispensed with in the first instance. It was therefore a defect which by subsequent enactment a legislature could cure — and a general act authorizing in all cases of insufficient assessment and levy a reassessment and relevy, is applicable to and cures this defect.

The judgment of the district court will be reversed, and the case remanded for further proceedings in conformity to the views herein expressed.

All the Justices concurring.