The opinion of the court was delivered by
Valentine, J.:
The city of Leavenworth caused some grading to be done on the land of Laing and Haines, two of the plaintiffs below, and levied a special tax thereon to pay for said grading. The plaintiffs refused to pay said special tax, and the treasurer of said city then sold said lands for the non-payment thereof.
Por the sake of convenience, (not that it is the most logical,) we will divide and consider the questions in this case, as follows: 1: Was the said sale valid? 2: Was the special tax valid ? 3 : And if said sale and said spe[282]*282cial tax were both void, is the City of Leavenworth liable to the contractor who did the grading ?
i. Statutes — oil. 46. Laws of 1862, ev'on'cities^to'1-oiai taxes?1 spe' I. We have already decided, (Paine v. Spratley, 5 Kas., 525,) and we now reaffirm the decision, that under chap. 46, art. 2, sub-div. 1, 2, 9, and 22, Comp. L. 1862, 384, et seq.,) the City of Leavenworth was not authorized to sell city lots for special taxes levied on said lots for the improvements of streets, alleys, etc.; (11 Johnson, 77; 4 Hill, 76, 93; 3 Wend., 263; 9 Iowa, 556; 23 id., 410;) that Ordinance No. 90 of said city, entitled “ An ordinance to regulate the opening, widening, grading and improving of streets, alleys, avenues, lanes, and other public grounds of the city, and levying and collecting special taxes for' such improvements,” approved June 24, 1863, was, so far as it provided for a-sale of lots for such special taxes, without authority of law, and therefore void; that the enactment of Chap. 69, Laws of 1864, p. 123, did not have the effect to make valid that portion of said ordinance which was before that time void; and that even under said chap. 69, a valid sale of lots for such special taxes could not be made until the city council of said city had first provided for such sale : (§ 6, ch. 69, Laws 1864.)
All the transactions in the case at bar, the contract, the grading, the levying of the special tax, the sale of the land for such special tax, and the issuing of the sale-certificate, were had in the year 1866, under the laws of 1864, and under so much of said Ordinance No. 90 as was valid. At the time these transactions were had, the city council of Leavenworth had made no provision under the law of 1864, for the sale of lots or land for special taxes. Therefore it is our opinion that the said sale, and the certificate founded thereon, are absolutely void.
[283]*2832. a city has no power to prooñmpíovtag“g pnvatepiop II. Was tbe special tax itself valid ? The said grading was done under a contract between the said city and John Dugan, one' of the defendants below, ° for grading Shawnee street, from Eighth to Seventeenth street, through said plaintiffs’ lands. The court below finds, and the evidence seems to sustain such finding, that “ no road or street was ever laid out or dedicated through the plaintaiffs’ land.” The authorities of Leavenworth city seem, therefore, to have transcended their authority in employing Dugan to grade the land of private individuals — to grade land in which neither the city nor the public had any interest. The contract and the said special tax were therefore both void.
3 — ana the owner’s presence 8 habie. But Laing, one of the plaintiffs below, was a resident of Leavenworth city, and knew at the time that his land was being graded, and made no objection ° ° ' ° thereto; hence it is claimed that he is estopped from setting up or claiming that the action of the city authorities, in" causing said grading to be done, was void. It is not claimed that Laing, by any act of his, ever authorized any one to do said grading, or induced any one to believe that he would pay for the same. It is not claimed that he ever admitted the validity of said contract, or the validity of said special tax; nor did he admit that any road or street run through his land. No express contract on his part to pay for said work is claimed; and no implied contract can be presumed from the circumstances. The grading was not done for him, or with any intention of primarily benefitting him. It was done for the city, and the primary object was to benefit the public. With this view of the case we do not think that either Laing or Haines is legally liable to pay for said grading.
[284]*284Evidence_ SlpradMed,8' secondary. III. It is claimed that the court erred in excluding certain evidence which was offered by the city of Leavenworth, to prove that there was a road through the plaintiffs’ land. A witness for the city, J. Gr., was asked by the counsel for the city, “ whether the report of the road viewers had been approved by the board of county commissioners.” The plaintiffs below objected, claiming that oral testimony was not the best evidence, and that the records of the board of county commissioners were the best evidence. The court sustained the objection, and excluded the evidence. This ryas right.
5.— Preiiminary matters adSííEMgwd'í?" der. Another witness for the city, E. S., was asked the following question: “ Do you recollect of Edw. Leonard furnishing you a map of a road laid out by _ or(ier of the Board of County Commissioners, running from Broadway, west, where IShawnee street now is?” “ Plaintiff objected, as incompetent under the proof as it now is, which objection was by the court sustained, to which’ ruling the defendant, the city of Leavenworth, excepted.” It would seem from the record that the city of Leavenworth did not inform the court what they wanted to prove by such evidence; and it will also be seen that the plaintiffs did not state why they claimed that such evidence was “ incompetent.” There seems to have been no objection to the form of the question. It is probable that this was only a preliminary question, asked for the purpose of laying a foundation for the introduction of the map spoken of. If it was for any other purpose, it was clearly and entirely incompetent. If it was for that purpose, the court might in its discretion have allowed it to be answered. A court may generally allow any link in a chain of evidence to be [285]*285introduced, whether it he the first or last, or some intermediate link. And a court generally has the right to determine in its discretion which link shall be introduced first; and unless it abuses its discretion its action will not be subject to be reviewed. The object of the city was probably to prove that a road was located through the plaintiff’s land, and the court in its discretion might have allowed the map of the road to be first introduced in evidence for that purpose, or might have required that evidence of some of the preliminary or other questions tending to prove the ^location.of such a road should be first introduced. At the time this question was asked, and in fact, at the close of the trial, there were still many facts to be shown in order to prove the existence of a valid road, concerning which, no evidence had been introduced. Hence, at no time during the trial was the city of Leavenworth in a condition to demand as a matter of right, that the evidence objected to should be allowed. The court therefore, did not err.
e. oohthaot_ toppei?y — Es~ IV.
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The opinion of the court was delivered by
Valentine, J.:
The city of Leavenworth caused some grading to be done on the land of Laing and Haines, two of the plaintiffs below, and levied a special tax thereon to pay for said grading. The plaintiffs refused to pay said special tax, and the treasurer of said city then sold said lands for the non-payment thereof.
Por the sake of convenience, (not that it is the most logical,) we will divide and consider the questions in this case, as follows: 1: Was the said sale valid? 2: Was the special tax valid ? 3 : And if said sale and said spe[282]*282cial tax were both void, is the City of Leavenworth liable to the contractor who did the grading ?
i. Statutes — oil. 46. Laws of 1862, ev'on'cities^to'1-oiai taxes?1 spe' I. We have already decided, (Paine v. Spratley, 5 Kas., 525,) and we now reaffirm the decision, that under chap. 46, art. 2, sub-div. 1, 2, 9, and 22, Comp. L. 1862, 384, et seq.,) the City of Leavenworth was not authorized to sell city lots for special taxes levied on said lots for the improvements of streets, alleys, etc.; (11 Johnson, 77; 4 Hill, 76, 93; 3 Wend., 263; 9 Iowa, 556; 23 id., 410;) that Ordinance No. 90 of said city, entitled “ An ordinance to regulate the opening, widening, grading and improving of streets, alleys, avenues, lanes, and other public grounds of the city, and levying and collecting special taxes for' such improvements,” approved June 24, 1863, was, so far as it provided for a-sale of lots for such special taxes, without authority of law, and therefore void; that the enactment of Chap. 69, Laws of 1864, p. 123, did not have the effect to make valid that portion of said ordinance which was before that time void; and that even under said chap. 69, a valid sale of lots for such special taxes could not be made until the city council of said city had first provided for such sale : (§ 6, ch. 69, Laws 1864.)
All the transactions in the case at bar, the contract, the grading, the levying of the special tax, the sale of the land for such special tax, and the issuing of the sale-certificate, were had in the year 1866, under the laws of 1864, and under so much of said Ordinance No. 90 as was valid. At the time these transactions were had, the city council of Leavenworth had made no provision under the law of 1864, for the sale of lots or land for special taxes. Therefore it is our opinion that the said sale, and the certificate founded thereon, are absolutely void.
[283]*2832. a city has no power to prooñmpíovtag“g pnvatepiop II. Was tbe special tax itself valid ? The said grading was done under a contract between the said city and John Dugan, one' of the defendants below, ° for grading Shawnee street, from Eighth to Seventeenth street, through said plaintiffs’ lands. The court below finds, and the evidence seems to sustain such finding, that “ no road or street was ever laid out or dedicated through the plaintaiffs’ land.” The authorities of Leavenworth city seem, therefore, to have transcended their authority in employing Dugan to grade the land of private individuals — to grade land in which neither the city nor the public had any interest. The contract and the said special tax were therefore both void.
3 — ana the owner’s presence 8 habie. But Laing, one of the plaintiffs below, was a resident of Leavenworth city, and knew at the time that his land was being graded, and made no objection ° ° ' ° thereto; hence it is claimed that he is estopped from setting up or claiming that the action of the city authorities, in" causing said grading to be done, was void. It is not claimed that Laing, by any act of his, ever authorized any one to do said grading, or induced any one to believe that he would pay for the same. It is not claimed that he ever admitted the validity of said contract, or the validity of said special tax; nor did he admit that any road or street run through his land. No express contract on his part to pay for said work is claimed; and no implied contract can be presumed from the circumstances. The grading was not done for him, or with any intention of primarily benefitting him. It was done for the city, and the primary object was to benefit the public. With this view of the case we do not think that either Laing or Haines is legally liable to pay for said grading.
[284]*284Evidence_ SlpradMed,8' secondary. III. It is claimed that the court erred in excluding certain evidence which was offered by the city of Leavenworth, to prove that there was a road through the plaintiffs’ land. A witness for the city, J. Gr., was asked by the counsel for the city, “ whether the report of the road viewers had been approved by the board of county commissioners.” The plaintiffs below objected, claiming that oral testimony was not the best evidence, and that the records of the board of county commissioners were the best evidence. The court sustained the objection, and excluded the evidence. This ryas right.
5.— Preiiminary matters adSííEMgwd'í?" der. Another witness for the city, E. S., was asked the following question: “ Do you recollect of Edw. Leonard furnishing you a map of a road laid out by _ or(ier of the Board of County Commissioners, running from Broadway, west, where IShawnee street now is?” “ Plaintiff objected, as incompetent under the proof as it now is, which objection was by the court sustained, to which’ ruling the defendant, the city of Leavenworth, excepted.” It would seem from the record that the city of Leavenworth did not inform the court what they wanted to prove by such evidence; and it will also be seen that the plaintiffs did not state why they claimed that such evidence was “ incompetent.” There seems to have been no objection to the form of the question. It is probable that this was only a preliminary question, asked for the purpose of laying a foundation for the introduction of the map spoken of. If it was for any other purpose, it was clearly and entirely incompetent. If it was for that purpose, the court might in its discretion have allowed it to be answered. A court may generally allow any link in a chain of evidence to be [285]*285introduced, whether it he the first or last, or some intermediate link. And a court generally has the right to determine in its discretion which link shall be introduced first; and unless it abuses its discretion its action will not be subject to be reviewed. The object of the city was probably to prove that a road was located through the plaintiff’s land, and the court in its discretion might have allowed the map of the road to be first introduced in evidence for that purpose, or might have required that evidence of some of the preliminary or other questions tending to prove the ^location.of such a road should be first introduced. At the time this question was asked, and in fact, at the close of the trial, there were still many facts to be shown in order to prove the existence of a valid road, concerning which, no evidence had been introduced. Hence, at no time during the trial was the city of Leavenworth in a condition to demand as a matter of right, that the evidence objected to should be allowed. The court therefore, did not err.
e. oohthaot_ toppei?y — Es~ IV. Was the city of Leavenworth liable to said John Dugan, the contractor, who did the grading ? And had the court a right to render judgment in favor of the defendant Michael Jordan, as administrator of the estate of said Dugan, and against the city of Leavenworth, for the value of said grading ? If the first question can be answered in the affirmative, it will be admitted under our code of procedure that the second question may also be answered in the affirmative.
The city of Leavenworth claims that she is not liable under any circumstances. There are other irregularities complained of, besides the one that there was no street or road running through the plaintiffs’ land. These irregularities are as follows:
[286]*2861. The contract between the city and said Dugan was not executed in accordance with said ordinance No. 90, in this, to-wit: Two-thirds of the members of the city council did not vote, (as the ordinance requires,) to have said grading done; no plats, plans, or specifications were ever made out as said ordinance requires; and the bond given by the contractor was not in double the contract price of the gr'ading. 2d. The property was not appraised as provided by the said ordinance. 3d. The assessment of the special tax to pay for said grading was levied on too great an area of the plaintiff’s land.
Without commenting specially on any of these supposed irregularities or defects, we would say, that the city had full and ample power under the act of 1864, to grade streets within the corporate limits, and that it did not require a vote of two-thirds of the city council to authorize the grading to be done. The city took possession of the land when the grading was done, and claimed that it was a street; the city employed Dugan to do the grading; it accepted the bond and the contract, as binding upon the parties thereto; and the city accepted and approved the grading after it was done. All this was within the general scope of their authority. It is provided for by the city charter: §3, chap. 69, Laws of 1864, p. 126, et seq.; and the city is now estopped from denying the validity of the contract. It cannot now say that the grading was not done on a street; (Mayor v. Sheffield, 4 Wallace, 189;) nor canfihe city set up any of the supposed irregularities, to defeat the contractor’s recovery. (See authorities cited in briefs of counsel, and particularly in brief of counsel for Michael Jordan.) Whether the property was appraised or not, and whether too great or too small an area was taxed, cannot possibly affect this case. The city [287]*287never had any authority either to appraise the property or assess the tax. As against the plaintiffs below the whole proceeding was void from the beginning.
The decision in the case of Leavenworth vs. Rankin, 2 Kas., 357, is not applicable to the ease at bar. That decision was under a different statute, and under a different ordinance; and the decision was correct. The city council in that case transcended their powers; they went beyond the scope of their authority, violated their own charter — a general statute, of which every one must take notice, and which the contractor is presumed to have known at the time.
"While Dugan, in this case, was bound to know the law as well as the city authorities, yet he was not bound to know that a certain supposed street, which was in the possession of the city, and claimed by the city to be a street, and used as such, had never been legally condemned, as a street, under the right of eminent domain, or had never been' legally dedicated as a street by the proprietor of the land, or had never become a street by usage and prescription. There is also a difference between executed and executory contracts. A city will generally be relieved from performing an illegal or void executory contract before any part of the same has been executed; while on the other hand a city will in many cases be compelled to perform such a contract, if it has already been executed by the other party, and if in equity and good conscience, the city ought to perform it.
The judgment of the court below is affirmed.
All the Justices concurring.