City of Lawrence v. Killam

11 Kan. 499

• Court: Supreme Court of Kansas
• Decided: July 15, 1873
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

The record in this case shows that Mary A. C. Killam was the owner of lots 21, 23 and 25, fronting upon New Hampshire street, on the west side thereof, in the city of Lawrence, the said lot 21, on the north side, also abutting upon "Winthrop street; and that on the 6th of March 1867 an ordinance was passed by the common council of said city providing for the building of sidewalks on various streets, including those adjacent to the above lots. It was provided by said ordinance that the walk on New Hampshire street should be four feet wide, and that on Winthrop street ten feet wide. Afterward, on the 21st of the same month, another ordinance “amendatory of and supplementary to” that of March 6th, was passed, which provided that all owners of lots adjacent to the proposed improvement, filing their notice of intention with the clerk of the city within ten days of the publication of the amendatory ordinance to construct his or her sidewalk, should have ninety days in which to do so. It also provided that the party authorized to let the contract for building said walks on the part of the city should advertise for proposals. In pursuance of these ordinances a contract was let, the sidewalks built, and the lots sold for nonpayment of the assessments thereof, the county of Douglas becoming the purchaser for a valuable consideration. Thereafter, without paying' or offering to pay any portion of these assessments, the defendant in error brought her action, seeking to have the sale declared void, and to restrain the execution of any deed therefor. She obtained a decree in the district court which plaintiffs in error now seek to reverse.

1. Enjoining tax-sales and tax-deeds. Several questions arise which will require consideration, and the first is, under what circumstances will equity, after a sale for nonpayment of taxes or assessments has been made, declare the sale void, and restrain the issue of a tax-deed. Several cases have been before this court in which efforts have been made to restrain tax-sales, and the rules to guide in such cases fully.stated and determined: Sleeper v. Justice, et al., 6 Kas., 300; Gulf Rld. Co. v. Morris, 7 Kas., 210; K. P. Rly. Co. v. Russell, 8 Kas., 558; Barker, Treas., v. Challiss, 9 Kas., 155; City of Ottawa v. Barney, 10 Kas., 270. In two of the cases cited, the two railroad cases, the tax was a tax upon personal property, and the injunctions sought were to restrain the levy and sale under a tax-warrant. The other cases were of special assessments for local improvements, as in the case at bar, and the applications were to restrain any sale. In these cases the general doctrine is laid down that courts of equity will not interfere to restrain by injunction the collection of taxes, when the property is subject to taxation, the tax legal, and the valuation not excessive, simply because of irregularities in the assessment. The rule applies to general and special taxes alike, and ah stated is taoad enough to cover every step in the collection of taxes. Now the issue of a tax-deed is but one step in the proceedings for the collection of taxes. Those proceedings are not complete when the sale is made; certainly not when, as here, the county is the purchaser: State ex rel. v. Comm’rs of Atchison, 1 Kas., 479. Equity bases its refusal to restrain a sale, not on the ground that the action is premature, and that the party’s title is in no danger until a deed is sought, but on the ground that it ought never to interfere; that in good conscience the party ought to pay, that the tax ought to be collected, and that it would be inequitable to relieve him therefrom. The reasoning applies with equal force to the tax-deed. Indeed, to refuse to restrain a sale, and thereafter to restrain a deed, would be gross trifling with the purchaser who by the one act is invited to buy that which by the other act he is not permitted to acquire. So that it may be safely laid down that the same rules will guide the court in applications to restrain tax-deeds as to restrain tax-sales. -

2. Equity, where legal and illegal taxes are united. Where a definable portion of the tax is legal and the balance illegal, equity will.refuse to interfere unless that which is legal be first paid: City of Ottawa v. Barney, 10 Kas., 270; Smith v. Comm’rs of Leavenworth Co., 9 Kas., 296. The case of the City of Leavenworth v. Norton, 1 Kas., 432, may seem at first to conflict with the proposition, as there it was conceded by the court that a portion of the tax was legal and still the execution of tax-deeds was restrained. For all that appears in the opinion of the court, the legal- portion may already have been paid or tendered. At any rate, the attention of the. court was not drawn to the precise point here presented, and it is only incidentally stated that a portion of the tax was legal in order to show the illegality of the rest. The same rule applies to deeds and sales. In each case if the legal tax has not been paid or tendered before suit, the court may properly permit the same to be done within a reasonable time and -the terms of the decree to vary with the fact of payment.

3. Street improvements in cities of second class under charter of 1867. Areas at street crossings. 4. Sidewalks. Corner lots. We come now to the questions more immediately relating to the proceedings in this case. As has been already noticed, the sale was for nonpayment of a sidewalk-tax. No question is raised as to -the power of the city to construct sidewalks and assess the cost thereof upon the adjacent property; none as to the liability of the lots in question to this , . 7 ~ , , kind oi taxation, lne objections made are. that the proceedings do not conform to the require-mente of the city charter, and are therefore void. There are four of these objections which will require notice. Two of these appear in the following statement of facts presented by counsel in their brief. First: June 19th there had been built on the north side of defendant’s lot 21, on Winthrop street, a piece of walk 10 feet wide and 122J feet long, being 5|- feet longer than the lot itself, the said 5-|- feet projecting eastwardly into “ the square or area ” formed by the “ crossing” of Winthrop and New Ha mpshire streets, and the whole of said piece of walk estimated “per area” as equivalent to a piece of walk 306 J- feet long and 4 feet wide and charged up to said lot 21. Second: June 26th there had been built on the east side of all of said lots, 21, 23 and 25, on New Hampshire street, a strip of walk four feet wide and one hundred and fifty feet long, which was charged up against'said lots in equal proportions. Was the cost of the five and a half feet of sidewalk projecting east of lot 21, and into the square or area formed by the crossing of the streets, properly chargeable on one or mo re of the adjacent lots, or should it have been paid for by a general tax? Was the cost of the 117 feet of sidewalk on the north side of lot 21 chargeable wholly to that lot, or ought it to have been apportioned between that and other lots? The only authority or power to the city of Lawrence to provide for and make the "improvement in question, and to make, the assessment for payment of-the same, was conferred by the act of 1867 in relation to cities of the second class, which provides that, “For all improvements of the squares or areas formed by the crossing of streets, and for foot-walks across streets, the assessments shall be made on all the real estate within the corporate limits of the city;” and that, “for making and repairing sidewalks the assessments shall be made on all lots and pieces of ground abutting on the improvement according to the front foot thereof” As to the cost of the 5§ feet of sidewalls above described, we think that it is governed by the first of the clauses just quoted., It was an improvement of the area formed by the crossing of Winthrop and New Hampshire streets. The portion of sidewalk at such corner is as much a part of the “area” as the part more particularly designed for the use of horses and carriages. There can be no good reason why the curbing and guttering around each corner sidewalk should be paid for by the city at large and the sidewalk itself by the neighboring lots. At any rate, it is a matter which the legislature has exclusive right to determine, and it seems to us the comprehensive term “all improvexnents” must be held to include sidewalks, and that the legislature intended that only those improvements which are squarely in front of a lot should be chargeable upon that lot. By this constructioxx we avoid the question as to whether this corner sidewalk can be said to “abut” on axxy lot, inasmuch as it only corners on the coi’ner lot, and we ascxibe to the legislatxxre the ixxtentioxx of establishing a more uniform rule of apportioning the burden of street improvements than if the lots paid for the sidewalk axxd the city for curbing, guttering axxd macadamizing. Upon the second question we think the comer lot was properly chargeable with the entire cost of the 117 feet of sidewalk. It is the only p^ abutting ou such improvement, and whether the front be ten or fifty feet is immaterial. We know that in a narrow axxd restricted sense the term “abutting” is used in reference to that which touches a lot at the end and “adjoining” to that which is on the side; (1 Bouvier’s Law Diet., Abuttals;) but we do not think the term is used in this statute in such restricted sense, but rather ixxcludes everything which touches the lot, whether in front or on the sides.

5. Councilman, Contractor with city. A third question is thus presented: On April 1st T. H. Lescher was elected councilman; on April 4th the canvass was made and the result declared; on April 24th the contract for building the sidewalks was made with Lescher & Melville, Lescher being the councilman elect. On May 6th he took his seat as a member of the council. The work was completed and accepted while he was councilman. It is claimed under § 4 of the act of .February 26th, 1867, (Gen. Stat., 389,) that by reason of these facts “the contract was void, his claim for compensation illegal, and that it could not be charged against the defendant’s property.” At the time the contract was executed Lescher was not a councilman; the contract therefore was then valid. This contract imposes obligations on each party to it. A failure by either to perform, gives to the other a cause of action. How can either without the consent of the other, of his own choice, or by his own act, avoid the agreement? The city had a right to insist upon the performance by Lescher & Melville of their contract, and they could not avoid fulfillment by pleading that one of the firm had subsequently thereto accepted the office of councilman. They had given bond to secure their performance. The section is a penal one. It prohibits an official from making or being interested in any contract, or doing any public work over which he would have, by virtue of his office, supervision and control. Being penal' in its nature its restrictions may not be enlarged by judicial construction. Especially is this-true when the effect of such construction would work no injury to the supposed wrongdoer, but would operate only to give to one party without pay the benefit of improvements which in equity he ought to pay for, and to make another and entirely innocent party pay the entire cost. We conclude therefore that there is nothing in these facts to relieve the defendant in error from liability.

6. Contract for building sidewalks; stipulation varying price. One question more remains, and that is this: The contract following the ordinances provided that payment might be made in cash at a given price within thirty days, or. in city scrip due January 1st following, at a price twentyfive per cent, higher. The city had the option ° J x to pay all or so much thereof as it might choose-in cash. Lot-owners were given the same rights as the city. It is claimed that, this conflicts with § 3 of art. 3 of the city charter, Laws 1867, page 122, which reads:

“ Sec. 3. The mayor and council of any city governed by this act shall have no power to appropriate or issue any scrip, or draw any order on the treasurer for any money, unless the same has been appropriated or ordered 'by ordinance in pursuance of some object provided for in this act; g/nd the mayor and council shall have no power to sell or dispose of serip} orders or bonds at less than their par value.”

We have been in a good deal of doubt upon this point, but our final conclusion is, that the section does not apply. The, charter provides that sidewalks should be paid for by assessments upon the lots. The city and the contractor cpntracted with reference to this ultimate liability. These assessments were collected at the time of the regular collection of taxes in the winter following. No payment could be enforced prior to that time. Any prior payment could be hoped for only by holding out some sufficient inducement therefor. The city was under no obligation to assume the primary liability and make immediate payment in cash, and then wait till the tax collections to reimburse itself. It could rightfully contract Avith reference to payment at such time as in the ordinary process of tax collections it could hope to realize funds therefor. Making a contract for payment at such time upon the best terms possible, it invaded no right of the lot-owner. If in addition it stipulated, with the assent of the contractor, that prompt payment at a much less sum should discharge the lot from further liability, it Avould seem as though it Avas entitled to the gratitude of the lot-owner instead of provoking a laAV-suit at his hands.

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

All the Justices concurring.