Mason v. Spencer

The opinion of the court was delivered by Valentine, J.: This was an action brought by Washington Mason and others, in the superior court of Shawnee county, to enjoin the defendants, Charles F. Spencer, county clerk, and others, from collecting certain sewer taxes levied by the city of Topeka upon certain lots in such city belonging to the plaintiffs, which taxes are alleged to be illegal and void. The plaintiffs also applied for a temporary injunction. This application was heard upon evidence, and the court below refused to grant the injunction. The defendants demurred to the plaintiffs’ petition upon the ground, among others, that the petition did not state facts sufficient to constitute a cause of action, and the court below sustained the demurrer. To reverse this ruling the plaintiffs bring the case to this court. Somé of the principal facts involved in this case are reported in the case of Gilmore v. Hentig, 33 Kas. 156, et seq. After the case of Gilmore v. Hentig was decided by the supreme court, and on March 2, 1885, the legislature passed an act which .it is claimed cures all the irregularities which occurred in the original construction of the sewers or in connection [518] therewith. That portion of the act which has application to this case, reads as follows : “ Sec. 2. That in any case where any sewer or sewers have been heretofore constructed in any city of the first class by order of or under contract authorized in fact by the mayor and council thereof by resolution or ordinance, and the same shall not have been fully paid for, the mayor and council of such city shall have authority at any time to make provision for such payment by the levy of taxes upon the property properly taxable therefor at large or in the proper district as originally intended, or the issue of the bonds of such city, or the warrants or other evidences of indebtedness of such city, to amount not exceeding the amount of such principal indebtedness and interest at the rate of not to exceed seven per centum from time when same shall have been paid; or may re-fund or re-issue any bonds or other evidences of indebtedness which may in fact have been theretofore issued on account of any such improvement and then remaining unpaid.” (Laws of 1885, ch. 95.) After the foregoing statute was passed by the legislature, the city of Topeka again levied taxes to pay for the sewers mentioned in the case of Gilmore v. Hentig, ante; and these are the taxes which the plaintiffs now claim are illegal and void.' It is claimed they are illegal and void for the reasons given in the said case of Gilmore v. Hentig; and also for the reason that the foregoing statute is unconstitutional and void. It is claimed that the foregoing statute is unconstitutional and void for the reason that its passage by the legislature was the exercise of judicial power, and not the exercise of legislative power. This point must be overruled, and there is really so little in it that we do not think it is necessary to discuss the same. The plaintiffs also claim that the foregoing “ act is unconstitutional and void for the reason that it attempts to confer corporate powers upon certain cities only, and cannot possibly at any time apply to other corporations, public or private, and is in contravention of § 1, article 12, of the constitution.” This point presents a much more difficult question. The plaintiffs refer to the case of City of Topeka v. Gillett, 32 [519] Kas. 431, as authority for their claim that the statute is unco ustitutional and void. The two cases, however, are not alike. In the case of City of Topeka v. Gillett, the legislature attempted to confer corporate powers, while in the present case the legislature intended only to cure irregularities; not to create powers, but only to remove restrictions. In that case the legislature clearly intended that the act should be -a special act, while in this present case we cannot say that such was the intention of the legislature. In that case it was intended by the legislature that the act should apply, not to a whole class, but only to a portion of a class, to wit, to only three cities of the Second class out of ten such cities. At that time there were ten cities of the second class in the state of Kansas, and it was possible for- the act to apply to three of them and to no more, and it was not possible for the act to apply to any other city or corporation; and the act was so limited with regard to the time for its operation that in all probability it could practically have operation only as to one of such cities—a single city. In the present case, however, the act is not only general in its form and general in its terms, but it is made to apply to an entire class of cities, and a dass as broad and general as any class for which any of the general laws for cities of the first class are enacted. It applies to all cities of the first class, and the time given for its operation is not limited; and any city of the first class coming within its terms may act under it, or not, as it chooses. All that the statute attempts to do in the present case is to dispense with certain preexisting legislative requirements; to cure certain irregularities existing because of a failure to comply with such requirements, and to relieve cities of the first class from what would otherwise be the effect of such irregularities. Such an act we think is constitutional and valid. As sustaining these views, see the cases of City of Emporia v. Norton, 13 Kas. 569; Tift v. City of Buffalo, 82 N. Y. 204. In connection with the last-mentioned Kansas case we would say, that it appears from the reports of the decisions of this court that in 1871 the city of Emporia, a city of the second class, levied special taxes to [520] macadamize, curb and gutter a certain street. These taxes were held to be illegal and void because of certain irregularities; and this notwithstanding the fact that a special act of the legislature (Laws of 1872, ch. 13) had been passed for the purpose of curing such irregularities. (Gilmore v. Norton, 10 Kas. 491.) Afterward, the city of Emporia relevied the taxes, or rather levied other taxes of a similar character, under a general law passed after the improvements had been made, and passed for the purpose of curing irregularities such as had intervened in that case, and which rendered the previous taxes in that case illegal and void, which general law reads 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, ch. 100, § 41.) 1. Valid statute. This act of 1872 was enacted for cities of the second class and for them only, and it was held to be constitutional and valid, and the taxes levied under it were upheld and sustained. (City of Emporia v. Norton, 13 Kas. 569; City of Emporia v. Norton, 16 id. 236.) This act of 1872 was also in substance reenacted by the legislature of 1885, (Laws of 1885, ch. 101;) therefore the legislature of 1885 not only enacted the curative statute now in question, which applies only to cities of the first class; but it also enacted a curative statute, (said chapter 101, Laws of 1885,) of a similar character for all cities of the second class. By the enactment of these two statutes it clearly appears that the legislature of 1885 had no intention of passing special acts conferring corporate powers, as was the case when the legislature of 1875 passed the act held P ^ to be void m the case of City of Topeka v. Gillett, ante; but the legislature intended to pass only general laws. [521] We think that § 2 of chapter 95 of the Laws of 1885 is constitutional and valid. 3' statuíé^may This we think substantially disposes of this case. It is true that the plaintiffs have alleged a great many irregularities, but the object of the legislature in passing the foregoing statute, (ch. 95, Laws of 1885,) was to cure such irregularities, and we think they are cured. It would seem from the ordinance passed by the city of Topeka subsequent to the passage of the foregoing statute, that the city of Topeka in relevying the taxes, or rather in levying the present taxes, attempted not only to come within the provisions of such statute and of all other statutes as modified by this statute, but also attempted to come within and to comply with all the decisions of this court and all the suggeátions made by this court in the case of Gilmore v. Hentig, ante, so far as such decisions and suggestions can apply to this case. The irregularities in the original proceedings of the city and its officers in connection with the construction of the sewers were in the main mere irregularities, mere failures to comply with certain provisions of the statutes which the legislature could have dispensed with by previous enactments if it had so chosen, and were therefore such irregularities as the legislature could waive or cure by subsequent enactment. It is a general rule that -where the legislature can dispense with a thing or render it immaterial by prior enactment, it may dispense with such thing or render it immaterial by a subsequent statute. In other words, where an irregularity rendering an act of a city or subordinate agency illegal or void is simply a failure to comply with some provision of the statutes, the compliance with which the legislature might hi advance have dispensed with, the legislature can by a general curative statute subsequently passed, dispense-with such compliance and thereby render the act of the city or subordinate agency legal and valid. All the authorities support this proposition; and we think this case falls within them. [522] 'apportion- ’ [521] As before stated, we think this case comes within the decision made in the ease of City of Emporia v. Norton, 13 Kas. [522] ■569. That some of the lot-owners may be required to pay more than a fair proportion of the cost of constructing the sewers, .will not necessarily and of itself invalidate the taxes. The taxes in the present case were levied, as we understand, in accordance with the value of the lots without the improvements thereon, in accordance with the suggestion of this court in the case of Gilmore v. Hentig, ante, and in .accordance with the decisions of the supreme court of Massachusetts in the cases of Downer v. Boston, 61 Mass. 277, and Wright v. Boston, 63 id. 233. In cases where all the lots taxed are actually benefited by the sewers, we.think that such an apportionment of the taxes must be held to be legal and valid, although in some few instances on account of peculiar circumstances or mistakes in the appraisement of the lots, some one or more of the lot-owners may have to pay more of the cost of the construction of the sewers than is fairly his or their proportion to pay. Absolute and exact justice in such cases can never be attained. In all cases some persons will be required to pay slightly more, and some slightly less, than their fair proportion. We do not understand that any of the lots taxed in this case are not benefited by the sewers. All, as we understand, are benefited more or less, though some are benefited less than others, and some less than the amount of the taxes levied upon them. The taxes, however, are only equal to the actual cost and fair value of the improvements. We might further say in this case, that the plaintiffs have not tendered any portion of the taxes levied upon their lots, and therefore if in equity they should pay any portion of such taxes, they must fail in this action. (City of Ottawa v. Barney, 10 Kas. 270.) We perceive no sufficient grounds for equitable interference in this case, and therefore the judgment of the court below will be affirmed. All the Justices concurring.