Gilmore v. Norton

10 Kan. 491

• Court: Supreme Court of Kansas
• Decided: July 15, 1872
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

i. Motion to deflnite?tltl0n On the 11th of October 1871 the,plaintiffs in the court below (defendants here,) filed their petition against the plaintiffs in error alleging that they were the owners, each in severalty, of certain real property upon Commercial street in the city of Emporia, a city of the second class; that the city had no funds; that divers persons had done macadamizing, curbing, and guttering on said Commercial street, and abutting upon plaintiffs’ lots, “ without any contract or authority of law whatever, to do the same,” and were seeking pay therefor; that the mayor and city council had levied an assessment upon plaintiffs’ said lots to pay for said work; that the city clerk had certified said assessments to the county clerk, to be placed upon the tax-roll for collection ; that the county clerk and county treasurer, defendants aforesaid, were proceeding to collect such assessments, and prayed injunction to restrain the collection of said tax. The injunction was granted. On the 3d of November the defendants filed a motion to require the plaintiffs to make their petition more definite and certain, which motion was overruled, and excepted to. We think the motion was rightfully overruled, as the defendants did not state in their motion wherein or in what particular the plaintiffs’ petition was indefinite and uncertain.

2 petition-statement of fact, aemais.

.3. joinder of ttoto/njo£ megai taxes,

4. Defect of par-waiver. On the 9th of January 1872 the defendants filed their demurrer to the plaintiffs’ petition, assigning three several grounds, which demurrer was also overruled and excepted to. We think the demurrer was also rightfully overruled. The grounds alleged for demurrer were, 1st, that the petition did not state facts sufficient to constitute a cause of action; 2d, that there was a misjoinder of parties plaintiff; 3d, that there was a misjoinder of .parties defendant. The ground upon which it is claimed that the petition does not state facts sufficient to .constitute a cause of action is, ^ potion simply alleges that the persons who made the improvements made them. “ without any contract or authority of law whatever to do the same,” and does not allege any other sufficient reason why the said assessments are ■void. The counsel for plaintiffs in error claim that “this” allegation “is not only not a fact, but it is not a ‘statement of fact/ it is simply a feeble ‘conclusion of law/ and would not authorize a judgment for plaintiffs” below. We think however the allegation is sufficient. The allegation that said persons made the improvements “ without any contract,” is incontestably sufficient; and if the words, “of law,” had been omitted from the other part of the allegation, the whole of it would clearly have been sufficient, and these words we think may be treated as surplusage. The allegation would then read that said persons made the improvements “ without any contract or authority whatever to do the same.” Whenever it is necessary to allege the non-existence of a fact the best and only proper way to do it is to allege its non-existence in positive and direct terms. It is never proper to allege the non-existence of a fact by simply alleging the existence of other facts. The existence of these other facts may in many oases prove the non-existence of said first-mentioned fact; but to allege their existence for that purpose only, is simply to allege indirectly and inferentially the non-existence of such fact, which is never considered a proper mode of pleading. Without now determining whether the question of a misjoinder of parties plaintiff or defendant can be raised on demurrer, we would say that there was no misjoinder of parties in this case. Under our statutes any number of persons whose property is affected by an illegal tax or assessment may unite as plaintiffs in an action to enjoin the collection of such tax or assessment, although their interests may be several and not joint: Code, §253; Bridge Company v. Wyandotte Co., ante, p. 326. The county clerk and the county treasurer, under the allegations of this petition were proper parties defendant. They have authority under the statutes to put all taxes and assessments like those in controversy on the tax-roll and collect the same. (City Charter, Laws of 1871, ch. 62, §§ 17, 26, 27; Laws of 1872, ch. 100, §§ 33, 43, 44.) And in this case they were proceeding to exercise such authority. They were proceeding to commit the very injuries of which the plaintiffs in this aption complain. Whether the city of Emporia, or the persons who made the improvements, were also necessary or proper parties, is not raised by said demurrer. The defendants do not demur because of a defect of parties defendant, but they demur because of a misjoinder of parties defendant. And as the defendants did not raise the question as to whether there was a defect of parties plaintiff, or defendant, by either demurrer or answer, it must be deemed that they waived the same: Code, §89, subdiv. 4, and §91.

e. special acts, corporate® powers, are void-

o. corporate defined. It is claimed that the court below erred in sustaining the plaintiffs’ demurrer to the defendants’ supplemental answer. This supplemental answer was a separate and independent pleading, and it did not deny any allegation of the plaintiffs’ petition. And the only matter \ ^ that it set up in avoidance of the allegations of the petition was the passage of a special act of the legislature entitled “An act to legalize proceedings and assessments of the mayor and couucilmen of the city of Emporia in 1871.” This act took effect March 27th, 1872; (Laws of 1872, ch. 13, page 13.) The allegations of the petition are substantially that certain persons voluntarily, and without any authority, macadamized, curbed, and guttered Commercial street in the city of Emporia, and that afterwards the city authorities levied an assessment on the adjacent or abutting lot-OAvners to pay for the same. At the time the work Avas done (according to the allegations of the petition,) neither the city of Emporia nor the lot-owners were liable to pay for the same, and the assessment against the lot-owners was of course absolutely null and void. Whether the legislature can by a special act make this assessment valid, is the question now presented to us for our consideration. The question however is not whether the legislature has the power by special act to make the city of Emporia liable for the work done, but it is whether the legislature has the power by special act to make the abutting lot-owners liable. We do not think the legislature has any such power. (Baltimore v. Horn, 26 Md., 194.) The constitution of this state provides that “The legislature shall pass no special act conferring corporate powers;” (const., art. 12, §1;) and it also provides that “all laws of a general natui-e shall have a uniform operation throughout the state;” (const., art. 2, § 17.) Now to authorize a city to macadamize, curb and gutter a street, and to assess the cost of the same against the abutting lot-owners, is certainly conferring corporate power. Any power conferred upon a corporation, and to be exercised by the corporation, is a corporate power. A power that would not be a corporate power if exercised by an individual becomes a corporate power when exercised by a corporation. The power of a city to pay for work which was done without any authority — work for which the city was, at the time it was done, (according to the plaintiffs’ petition,) under no legal or moral obligation to ever pay, is in our opinion a very high corporate power. But the power of a city to enforce the abutting lot-owners to^pay for such work, when neither the city nor the abutting lot-owners at the time the work was done were under any legal or moral obligation to ever pay for the same, is most certainly one of the very highest of corporate powers. Such a power has never been conferred upon any class of cities of the state of Kansas. In every other city of this state certain antecedent and prerequisite conditions must exist before the city has the power to make special assessments against the abutting lot-owners for street improvements. The city itself must legally authorize the improvements to be made, and become itself legally liable to pay for the same, before it can legally enforce the abutting lot-owners to pay for the same. Can the legislature by a special act confer, upon the single city of Emporia powers not possessed by any other city in the state of Kansas? We think not. (Atchison v. Bartholow, 4 Kas., 124, 141, 145,146; Wyandotte v. Wood, 5 Kas., 603; State v. Cincinnati, 20 Ohio St., 18, 36.) Could the legislature even when passing general laws for the government of cities of the second class exempt the city of Emporia from their operation? Could they prescribe a rule for a certain class of cities, and then say that one of that class should be exempted from the rule? If so, the law could hardly be said to be a general law; and it certainly could not be said to have a uniform operation throughout the state. (Darling v. Rogers, 7 Kas., 592.) It will be conceded that the legislature may in some cases pass general curative laws for corporations. It is possible also that they may in some rare cases pass special curative laws for corporations. But the present is not one of such cases. All that we now decide is, that the legislature cannot pass a special act which will cure all of such irregularities as are alleged in the plaintiffs’ petition.

7 Title to lanas ing proven.

„ jEvfllSof ütle' It is also‘claimed that the court below erred in admitting certain evidence which tended to show the interest that the plain tiffs had in the lots upon which the assessments were made. The plaintiffs in error claim that the evidence was only secondary evidence. We perceive no error however in the ruling of the court upon this evidence. Actual possession of real ^estate has always been prima facie evidence of title to the same; (Gulf Rld. Co. v. Owen, 8 Kas., 409, and authorities there cited; 1 Phil. Ev., (3d ed.,) 452; Cowen & Hill’s Notes, No. 297;) and this is just what the evidence tended to establish. And for this purpose the evidence was original, and not secondary evidence. The evidence did not show that there was any better evidence back. Of course, title by deed must be proved by the deed; title by a ■decree of court must be proved by the decree; title founded •on any particular written instrument must be proved by such instrument. But title, without reference to whether it be by deed, decree, devise, descent, equitable estoppel, prescription, limitation, or otherwise, or whether it be a legal or an «quit-able title, may be proved prima facie by showing actual possession. But as to some of the lots it is claimed that no actual possession has been shown. This may possibly be true, but still the evidence objected to tended to prove actual possession and title, and that was clearly sufficient to authorize its admission. Said evidence was, according to the record, “to the effect that said claimants have openly and notoriously claimed said lots for four years last past; have during all that time taken persons upon said lots, and offered to sell the same to them; have •during all that time given in said lots to the assessor as their own, and paid the taxes on them. The said lots are uninclosed and no improvements have ever been made on them.” Now, it is not necessary that a person should always be actually upon real estate in order that he may be in the actual possession of the same. Nor is it necessary that he should actually reside thereon for that purpose. Neither is it necessary that there should be any improvements on the property. (Ewing v. Burnett, 11 Peters, 41, 52, 53.) There may be an actual possession of uninclosed and unimproved land. (Longworthy v. Myers, 4 Iowa, 18, 20, 21, and cases there cited.) All that is necessary to constitute an actual possession of such land is, that visible and notorious acts of ownership should be exercised over the premises; (Draper v. Shoot, 25 Mo., 197, 203; Angell on Limitations, (4th ed.,) §§397/398, and cases there cited.) The payment of taxes is always very strong evidence, prima faeie, of ownership. All visible and notorious acts of ownership may be shown to the jury for the purpose of proving ownership. Whether the evidence adduced in any given case sufficient to prove ownership or not, is a question for the jury. This kind of evidence however, as we have already .stated, is only prima faeie evidence, and must always give way to stronger evidence. In this case however it would seem that evidence, showing that the plaintiffs below had formerly paid the taxes on said lots, claiming them to be their own, ought to be competent evidence, for this action itself is an action to determine whether a certain kind of taxes are valid or not. Indeed, it would seem that such evidence ought to be competent to prove ownership in any case, and against any person who could not show a better title in himself, or in the person under which he should hold. It would seem that such evidence ought to be sufficient evidence of title as against any mere wrongdoer. Said evidence objected to undoubtedly tended to show that the plaintiffs exercised visible and notorious acts of ownership over said lots, and it was therefore competent evidence. But even if it were shown that the plaintiffs had no title to the lots, still as they were in possession of the property, exercising acts of ownership over it, and claiming it to be their own, they had an inchoate title that would in time under the statute of limitations ripen into a complete and absolute title. And evidently, while this inchoate and incomplete title to said lots is growing into a complete and absolute title, the plaintiffs ought to have a right to see that no illegal tax or assessment should be imposed upon said lots to eventually override and overthrow their own inchoate title.

9 Estimates of provementsm‘ cay engmeei. It is also claimed that the court erred in excluding certain evidence offered by the defendants below to prove that the engMeer made certain estimates of the costs of the said improvements before the same were ma(je_ jn we Coui’t did err. There was no irregularity in making said estimates. The contracts were afterwards made with reference to them, and for just such work as the estimates were made, and the work was done for much less than the estimated cost thereof. It is true, that the estimates were made before any ordinance was passed requiring the improvements to be made, but this makes no difference. In fact, we think the estimates ought to be made first, as the city council could then act more intelligently in passing the ordinance. The,estimates were made however at the request of the mayor and council, but we do not suppose that it was necessary that any request should have been made. We suppose it would be sufficient if made on the engineer’s own motion. The only thing essential is, that the estimate should be made, and this was. done. (See Gen. Stat., 169, ch. 19, § 31.) It is also true that these estimates were for the cost of curbing and guttering per lineal foot,, and the cost of macadamizing per square yard; and neither was for the cost in gross. The way the estimates were-made was probably the best way, and it was certainly a sufficient way. It was definite enough, and specific enough, for any person. It is also true that these estimates were not entered upon the records of the city council, but we know of no statute that required that they should be so entered. But if there had been such a statute, can it be supposed that a failure to record them would invalidate them? But if it be held that the court erred in excluding said evidence, still it is claimed by the defendants in error that the advertisement for bids, and all after-proceedings, are void, because the amount of said estimates was not published with said advertisement for bids. It is true that the statute requires that the amount of the estimates shall be so published; (Gen. Stat., 169, ch. 19, § 31.) And it is equally true that it was not so published in this case. But we think the statute in this respect is purely directory. It is entirely unlike statutes which require a thing to be done as^a condition precedent. For the error in excluding said evidence, the judgment of the district court is reversed, and a new tx-ial awarded.

All the Justices concurring.