City of Kansas City v. McGrew

96 P. 484, 78 Kan. 335, 1908 Kan. LEXIS 60

• Court: Supreme Court of Kansas
• Decided: June 6, 1908
• Docket: No. 15,590
• Status: Published

Opinion

The opinion of the court was delivered by

Porter, J.:

This is a suit by property owners to enjoin assessments relevied by the city of Kansas City on account of the cost of a certain sewer. The ordinance relevying the assessments complained of was first published August 24, 1906. The suit was not begun until November 1, 1906. Under the authority of Railroad Co. v. Kansas City, 73 Kan. 571, 85 Pac. 603, this was too late. Section 130 of chapter 122 of the .Laws of 1903 reads:

“No suit nor action of any kind shall be maintained :in any court to set aside or in any way contest or enjoin the levy of any special assessment for constructing or repairing any sidewalk, pavement, sewer or any other public improvement after the expiration of thirty ■days from the time the amount due on each lot or piece of ground liable for such assessment is ascertained.”

The statute clearly applies with equal force to cases where the assessments have been relevied as it does to those where originally levied, and the fact that the suit .is based upon a judgment holding the original levy void makes no difference. The language of the statute limiting the time in which such suits may be commenced is not open to any other construction. The proceedings to relevy usually consist of the passage of .an ordinance, and nothing more. If it is regular, the proceedings on their face are likewise regular. As was said in Railroad Co. v. Kansas City, supra: “After the expiration of thirty days the validity of the assessment can not be attacked for any purpose, when the proceedings are regular on their face.” (Page 575.) The demurrer should have been sustained.

The judgment is reversed and the cause remanded, with directions to enter judgment for the defendants.