constitute separate stages of the process whereby municipal law comes into being, and, whenever city officials act in a public, political governmental capacity for the passage of an ordinance, they act in the same capacity for the publication of it. City ordinances relating to matters of general public concern have the force and effect of law. Yount v. Denning, 52 Kan. 629, 636, 35 Pac. 207. The city is delegated agent of the sovereignty to establish the law in the municipal territory, and the agency lasts until the end is attained. This is not a case involving simply the ministerial execution of work laid out by an ordinance, after legislative discretion has ended. City of Leavenworth v. Casey, McCahon, 124, 1 Kan. (Dassler Ed.) 550; Bowden v. Kansas City, 69 Kan. 587, 590, 77 Pac. 573, 66 L. R. A. 181, 105 Am. St. Rep. 187. While legislative discretion over the contents of the ordinance may have ended with the proceedings in the council chamber, the governmental function of promulgating public law did not end until the ordinance was published in due form. Therefore the city is under no more liability for the conduct of its officers in publishing an ordinance, whereby it acquires the quality of law, than it is for the conduct of the same officers in considering the ordinance section by section or in voting upon it. refuse to allow the said plaintiff the enjoy-, publication combine to make the law. They ment of its aforesaid franchise, and contract right and privileges, and did refuse to approve plaintiff's bonds, plans, and specifications and repudiated said contract, a copy of which ordinance of repeal is hereto attached and made a part hereof, which said repealing ordinance was duly published in the Olathe Republican Tribune, the official paper of said city." The franchise ordinance designated the streets to be used, covered fully the subjects of construction, maintenance, and operation, and prescribed many regulations intended to conserve the rights of the general public to use the streets, and in other respects to protect and promote the public welfare. It required that connection be made with the street railway system of Kansas City, Mo. Some of the proprietary rights of the city which would necessarily be affected by the exercise of the privileges granted were protected, but no independent, private, proprietary corporate object or advantage was sought to be obtained by means of the franchise, and the city assumed no obligation of a private proprietary nature. A right of repeal under certain circumstances was reserved, the railway company was required to give bond for the performance of conditions imposed, and was required to file with the city clerk plans and specifications of construction work, to be approved by the city council before construction commenced. The damages claimed were cost of condemnation proceedings, attorney fees, loss of profits, depreciation in the market value of bonds at the time on sale, and some other items. Evidently the petition was prepared on the theory that the repeal of the franchise ordinance, and the consequent damage, created a cause of action against the city. The general statement that the city refused to permit the plaintiff to enter the city is limited by the specification as to how the refusal was accomplished, "and therein did on the 25th day of June, 1906, enact a certain ordinance repealing," etc., and the repealing ordinance was, of course, the act of obstruction and repudiation actually relied on. In the principal brief the cause is argued as if the repeal of the franchise ordinance occasioned the damage and furnished the foundation of the action. An attempt is made to fortify the argument in a reply brief, but in an addendum to the reply brief the position is abandoned altogether. The plaintiff now relies on the so-called ministerial act of publishing the repealing ordinance, the subsequent refusal of the city to approve its bonds, plans and specifications, the subsequent refusal to allow the plaintiff to enjoy its franchise, and the subsequent repudiation of the contract. These points will be noticed as if the theory of the petition really embraced them. The statute requires all ordinances of cities of the second class, except those for the mere appropriation of money, to be published be Concerning the other matters supposed to entail liability, refusal to approve bonds, etc., after the repeal, re-repudiation of the franchise, and re-refusal to permit it to be enjoyed, the question is: In what capacity was the city acting? If it acted as an agent of the sovereignty upon a subject of general public concern, dissociated from any private, proprietary, corporate right, it shares the sovereign's immunity from suit. In granting the franchise the city acted in a purely governmental capacity. It sought to promote the general welfare and nothing else. else. It had no private, proprietary end in view, obtained no advantages of that character, and assumed no obligations of that kind. kind. The repealing ordinance dealt with the same subject, the general welfare, and nothing else. The subsequent measures taken by the city pursuant to the repealing ordinance and by way of its enforcement belong to the same category. They were purely governmental measures taken by the city as the agent of the state for the promotion of the public good, and had no private corporate aspect whatever. What the city officials did was to prevent the streets from being invaded and permanently occupied by the plaintiff with its ties and rails and wires and poles and moving cars, to the detriment of the traveling public. It may be that the repealing ordinance was void. It may be that the conduct of the city confirmatory of the repeal was all wrong, oppressive, and injurious to the plaintiff. But ficials, if any, acted not for the peculiar private advantage of the corporation but as representatives of the state in a matter of general public interest, the city is no more liable in damages for what they did than the state itself. "Acts done by the mayor and aldermen, or the mayor alone, to keep the streets clear of obstructions, are acts done by them as public officers, and not as agents of the city, and for such acts the city was not liable to be sued." Haskell v. New Bedford, 108 Mass. 208, 211. The distinction between the governmental and proprietary functions of municipal corporations and their officers has been stated and acted upon so many times that authorities are superfluous. Some of the numerous Kansas cases are the following: State ex rel. v. Hunter, 38 Kan. 578, 17 Pac. 177; Peters v. City of Lindsborg, 40 Kan. 654, 20 Pac. 490; La Clef v. City of Concordia, 41 Kan. 323, 21 Pac. 272, 13 Am. St. Rep. 285; City of Caldwell v. Prunelle, 57 Kan. 511, 46 Pac. 949; State v. Water Co., 61 Kan. 547, 60 Pac. 337; Freeman v. Chanute, 63 Kan. 573, 66 Pac. 647; Water Co. v. Cherryvale, 65 Kan. 219, 69 Pac. 176; Asher v. Water Co., 66 Kan. 496, 71 Pac. 813, 61 L. R. A. 52; Bowden v. Kansas City, 69 Kan. 587, 77 Pac. 573, 66 L. R. A. 181, 105 Am. St. Rep. 187. The following statement appears in the plaintiff's brief: "That in granting franchises, authorizing water, gas, telephone, railroad, and other companies to set poles, lay pipes, and tracks, and otherwise use and occupy its streets, municipal corporations exercise, not legislative or governmental powers, but quasi private power conferred by law, and in such matters are governed by the same rules that apply to an individual or a private corporation, is settled law in this state. State v. Water Co., 61 Kan. 547, 561, 60 Pac. 337; Water Co. v. Cherryvale, 65 Kan. 219, 228, 69 Pac. 176." The cases cited do not so hold, and such is not the law. In the case of State v. Water Co., 61 Kan. 547, 60 Pac. 337, the city of Topeka rented from the water company, to which a franchise was granted, 150 hydrants, and agreed to pay rent for them in the sum of $700 per year. The water company further agreed to establish any additional hydrants the city required for which the city agreed to pay $50 per year each. It was further provided that the company would erect 10 hydrants on each mile of extensions of pipe, for which the city should pay $500 After the number of hydrants reached 300, the city was to have water for additional fire hydrants free on paying the cost of the hydrants and connections. view of the purely proprietary features of the ordinance, the court said: "In the making of said contracts evidenced by ordinances, the city was not exercising legislative or governmental powers, but quasi private power conferred by law, and in such matters it by the same rules as apply to an individual or a private corporation." In the case of Water Co. v. Cherryvale, 65 Kan. 219, 69 Pac. 176, the city, besides granting the water company a franchise, rented 45 hydrants at an annual rental of $2,700, and reserved the right to buy the plant at the expiration of a stated term. The litigation arose out of the business features of the ordinance, and the court said: "In the making of such contract the city exercised quasi private power, and was governed by the rules applicable to an individual or a private corporation." Water Co. v. Cherryvale, 65 Kan. 219, 228, 69 Pac. 176, 179. Cases from other jurisdictions are cited with the same lack of discrimination to sustain the proposition advanced in the brief, and they need not be reviewed at length. State v. Gates, 190 Mo. 540, 89 S. W. 881, 2 L. R. A. (N. S.) 152, is perhaps an exception, and, being exceptional, is not controlling. Likewise, in the cases cited to show pecuniary liability on the part of cities for breaches of franchise ordinances, business affairs, and not governmental conduct furnished the ground of action. A city may grant water, gas, electric light, telephone, and street railway franchises, and utilize none but its governmental powers, as the city of Olathe did in this case; and so long as city officials confine themselves to the exercise of such powers, and do not involve the corporation on its proprietary side, it will not be held responsible in damages for misuser. The plaintiff says the enforcement of the repealing ordinance deprives it of property without due process of law, and consequently the remedy lies in an action for damages. The premises may be granted without stopping to analyze it, for the conclusion does not follow. The mayor and council were not acting as private corporate agents, but as public officials clothed with delegated sovereign authority, and the remedy was to institute appropriate proceedings to restrain them from executing the repealing ordinance, and so from interfering with the plaintiff's enjoyment of its franchise. The plaintiff seeks to evade the principle involved by giving a name to the violated obligation. It is said the duty not to deprive the plaintiff of its franchise was an “imposed" duty just as the publishing of the repealing ordinance was called a "ministerial" act. The duty not to impair the obligation of the contract resulting from the acceptance of the franchise by repealing the franchise ordinance might as well be called an "imposed" duty, but the plaintiff has conceded that reparation for its breach does not lie in damages. The reason for nonliability is the same in both cases. Imposed duties for the neglect of which the city may be liable are those which are superadded to merely governmental functions, like the special private corporate duty to maintain streets in a safe condition for public travel (Gould v. Am. Rep. 496), or the special, private corpo- | rate duty to maintain and manage corporate property so that city employés shall have safe places in which to work (Bowden v. Kansas City, 69 Kan. 587, 77 Pac. 573, 66 L. R. A. 181, 105 Am. St. Rep. 187). The constitutional mandates invoked came to the city officials merely as rules to be observed in the performance of their governmental du ties, and not as special increments to the private corporate duties of the municipality. In the reply brief the argument is advanced for the first time that on the face of the petition there is no legitimate excuse for the conduct of the city, and hence the mayor and council acted arbitrarily and in bad faith, and so rendered the city liable in damages. Here again the theory of the petition is abandoned, but the interpretation proposed may be conceded without question for the conclusion does not follow. If the city officials acted in bad faith, the city might be enjoined (Paola v. Wentz, 81 Kan. 148, 98 Pac. 775), but it is quite elementary that such officials could not, by departing from official probity and duty in the field of governmental activity, convert themselves into private corporate agents with capacity to bind the corporation in pecuniary damages. The judgment of the district court is affirmed. All the Justices concurring. COLWELL v. PARKER et al. (Supreme Court of Kansas. Dec. 11, 1909.) 1. NEGLIGENCE (§ 142*)-SPECIAL AND GENERAL FINDINGS JUDGMENT ON FINDINGS. In an action for negligence, where the jury returned a general verdict for the plaintiff and special findings, including a finding that defendant was negligent, and another finding that the direct cause of the plaintiff's injury was the negligence of another, from which it is apparent that the negligence of the defendant was wholly unrelated in its operation to the direct, proximate cause of the injury, the defendant is entitled to a judgment on the findings notwithstanding the general verdict. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 401; Dec. Dig. § 142.*] 2. TRIAL (§ 337*)-INSTRUCTIONS-LAW OF THE CASE-CONFLICTING FINDINGS-JUDGMENT. Action by Ally R. Colwell against C. W. C. W. Parker is a manufacturer of tents, platforms, show fronts, and other parapher nalia used in street fairs and carnivals. His factured and leased to Raver & Darnaby a place of business is at Abilene. He manu moving picture show for exhibition in a tent, by descending steps about four feet to the determining whether an ordinarily prudent manufacturer would have had any reason to anticipate the accident, and, if they believed that an ordinarily prudent person would have no reason to anticipate such an accident, the defendant could not be held negligent under the facts. They were also instructed that if they found from the evidence that the platform and steps were constructed in the usual and ordinary manner and in a way usually regarded by manufacturers of such platforms and steps as reasonably safe for the use of the public, such would be the exercise of ordinary care on the part of the deare found from the evidence the defendant cannot be held liable, and the jury find those facts, fendant. The jury returned a verdict in but render judgment against the defendant, and favor of the plaintiff, awarding her $1,500 there is no complaint that the instructions are damages. They made certain special finderroneous, the instructions will be regarded as the law of the case which the jury were boundings of fact, among which are the following: to follow, and in such case it is the duty of "(1) Was the defendant C. W. Parker guilty the court to set aside the general verdict and of any act of negligence which caused the render judgment for the defendant on the special injury of which the plaintiff complains? A. findings. Yes. (2) If you answer the question, 'Yes,' then state what act of negligence the defendant C. W. Parker was guilty of which resulted in the injury of which the plaintiff Where special questions are submitted to the jury under instructions that if certain facts [Ed. Note.-For other cases, see Trial, Cent. Dig. 790; Dec. Dig. § 337.*] (Syllabus by the Court.) Appeal from District Court, Dickinson complains? A. By not taking reasonable County: O. L. Moore, Judge. precaution in furnishing a railing. (3) Who For another equally sufficient reason it was the duty of the court to render judgment in favor of defendant notwithstanding the general verdict. The fifteenth, sixteenth, and eighteenth findings are to the effect that steps of this kind had been in general use for several years; that hundreds of thousands of people had used them without being injured; and that defendant at the time he manufactured the steps in question had never heard of any injury resulting to a person by falling from steps similarly constructed and used. The instructions charged the jury that if these facts were found from the evidence defendant was not liable. The plaintiff makes no complaint of the instructions, and filed no motion for a new trial, so that the instructions must be regarded as the law of the case. U. P. Ry. Co. v. Hutchinson, 40 Kan. 51, 19 Pac. 312. Whether the law as declared is correct or not, we need not inquire; it was the law which the jury were bound to follow. had immediate charge of the electric theater | (N. S.) 658, 121 Am. St. Rep. 416; Comes v. at the time the plaintiff was injured? A. Dabney, 102 Pac. 488. Mr. Randahl. (4) Was such person employed or paid by the defendant Parker or in any manner under his control? A. No. (5) Were the steps leading down from the wagon into the tent constructed in the usual manner for such carnival shows? A. Yes. (6) Did the ticket taker belong with the carnival company or did he represent the Oskaloosa Base Ball Club? A. Represented the Ball Club. (7) Was it his duty to prevent patrons of the show from entering while the lights in the tent were turned off? A. Yes." A. Yes." "(9) Was the injury to the plaintiff the direct result of the failure to enforce orders given by Raver & Darnaby to prevent patrons from entering the electric theater while the lights in the tent were turned off? A. Yes." "(15) How long had steps such as those from which the plaintiff fell been in general use? A. For several years. (16) Is it not a fact that hundreds of thousands of people have passed down such steps without being injured? A. Yes." "(18) At the time the defendant manufactured the show entrance and steps from which the plaintiff fell, did he know, or had he heard, of any injury resulting to any person from falling from steps similarly constructed and used? A. According to the evidence, no." The court sustained the motion on the part of the defendant Parker for judgment on the findings notwithstanding the general verdict, and of this ruling the plaintiff complains. The judgment is affirmed. All the Justices concurring. LUDWICK v. DEAN et al. (Supreme Court of Kansas. Dec. 11, 1909.) 1. TAXATION (§§ 742, 762, 788*)—TAX DEED RECITALS-PRIMA FACIE EVIDENCE. A tax deed issued upon assignment of a tax sale certificate, which assignment is made by the county clerk pursuant to an order of the C. C. Towner and C. C. Orvis, for appel- board of county commissioners for a sum less lant. Hurd & Hurd, for appellees. PORTER, J. (after stating the facts as above). On the findings there was nothing left for the court but to render judgment for defendant Parker. The situation presented was not, as plaintiff contends, one where the special findings are merely susceptible of an interpretation which would overthrow the general verdict, but no other reasonable interpretation can be given to them. The finding that the plaintiff's injury was the direct result of the failure of Raver & Darnaby's employés to prevent her from entering the theater while the lights were turned off required judgment to be entered for defendant. If it be conceded that defendant Parker was negligent in the manner in which the platform and steps were constructed, his negligence was wholly unrelated in its operation to the direct, proximate cause of the injury, but was the prior and remote cause, and did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible. Cleghorn v. Thompson, 62 Kan. 727, 64 Pac. 605, 54 L. R. A. 402; Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, 58 L. R. A. 399; Rodgers v. Railway Co., 75 Kan. 222, 88 Pac. 885, 10 L. R. A. than the legal taxes, interest, and penalties upon the land, has "the same force and effect as if the full amount of taxes, interest, and penalties had been paid therefor." Section 7672, Gen. St. 1901. And the recital in the tax deed of facts which justify such assignment in lieu of section 7676 in case of full payment is not a the recitals indicated in the form prescribed by substantial departure from such form, but is substantially in the prescribed form, and the deed is prima facie evidence, as provided in section 7676, Gen. St. 1901. [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 1482, 1514-1516, 1555-1569; Dec. Dig. 88 742, 762, 788.*] 2. TAXATION (§ 805*) -TAX DEED - LIMITA TION-DEFENSES. Such tax deed cannot in an action commenced more than five years after the recordlimitations is pleaded as a defense, be avoided ing thereof, and to which action the statute of by proof of facts not appearing upon the face of the deed, except in cases where the taxes have been paid or the land redeemed as provided by section 7680, Gen. St. 1901. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1593-1597; Dec. Dig. § 805.*] (Syllabus by the Court.) Appeal from District Court, Gray County; Gordon L. Finley, Judge. Action by William F. Ludwick against Minnie M. Dean and others. Judgment for defendants, and plaintiff appeals. Affirmed. James B. Naylor and B. F. Milton, for ap- I would justify the assignment of the certificate pellant. Albert Watkins and Thos. A. Scates, under the provisions of section 7672, Gen. St. for appellees. 1901. SMITH, J. This action was commenced by the appellant, who is conceded to be the own er of the land, unless his title is divested by a tax deed held by appellees. His petition recited that the appellees claimed title to the land under a tax deed, a copy of which, including the signature of the county clerk and acknowledgment, he set out therein. The appellees admitted that they held the land by virtue of the tax deed, and alleged that it was valid. They also pleaded the statute of limitations as a defense to the action. The reply was a general denial. On the trial, the appellees, having admitted the appellant's chain of title, assumed the burden of proof, and offered the tax deed in evidence. The appellant objected to the deed as evidence, and, the court having overruled the objection, the ruling is assigned as error. It was unnecessary to offer the deed in evidence, the appellant having pleaded its execution and set it out; and the appellees admitting it, or at least not denying it under oath, it stood as an admitted fact. This being true, there could be no prejudicial error in admitting it as evidence. The tax deed was issued and acknowledged more than five years before the commencement of the action, and it was admitted that the appellees had been in possession of the land from the date of the execution of the deed. The appellant then, for the purpose of showing that the recitals in the deed in regard thereto did not correspond with the record, offered in evidence the record of the order of the board of county commissioners authorizing the assignment of the tax sale certificate by the county clerk for a less amount than the taxes, interest, and penalties, and, upon the objection of the appellees, the court excluded such evidence, and this is the assignment of error upon which the appellant seems to rely. The tax deed recited that the land was subject to taxation; that taxes were levied thereon, the sale of the land therefor; that no person offered to bid the amount of taxes, interest, and penalties at the time of the sale; that the land was bid in for the county by the treasurer; that no one offered to redeem the land or to pay the amount of taxes, interest, and penalties for an assignment of the certificate for more than three years after the sale, and the order of the board of county commissioners authorizing the assignment of the certificate for a sum less than the full amount of taxes, interest, and penalties. The recitals in the deed were in accordance with the form prescribed by section 7676, Gen. St. 1901, except that, in lieu of the prescribed recitals relating to an assignment made in consideration of full payment of taxes, interest, The appellant contends that this was a substantial departure from the form prescribed by the statute, and that the provisions of section 7676, making a deed issued in the prescribed form prima facie evidence of certain facts, is not applicable to this deed. We cannot agree with this contention. Secof section 7676, and provides that such "astion 7672 was adopted after the enactment fect as if the full amount of all taxes, intersignment shall have the same force and efest, and penalties had been paid therefor." If the recital of such an assignment in a tax deed issued thereunder did not have the same effect as the recital of an assignment for full payment, this provision would not be fully effective. The form prescribed by statute for a tax deed contains provision for the recital of certain facts, and in this case we cannot regard the omission to recite facts which did not exist and the recital of facts which in law would have the same effect as the omitted facts if such omitted facts had existed as a material variance, and hold that the deed in this case is prima facie evidence of the facts recited, as prescribed by section 7676. Douglass v. Wilson, 31 Kan. 565, 3 Pac. 330. However this may be, section 7680, Gen. St. 1901, prescribes a limitation to such actions, and this limitation was pleaded in the answer as a defense to the action. This limitation provides that no suit or proceeding shall be commenced for the purpose of vacating or setting aside a tax deed, unless it be commenced within five years from the time of the recording of the tax deed, "except in cases where the taxes have been paid or the land redeemed as provided by law." This limitation has been applied and upheld by numerous decisions of this court, and in these decisions it has been repeatedly held that, after a tax deed has been of record more than five years before the beginning of the action to avoid it, no facts except such as are embraced in the foregoing exception, and such facts as appear upon the face of the deed, can be considered for the purpose of avoiding it. avoiding it. Edwards v. Sims, 40 Kan, 235, 19 Pac. 710; Doudna v. Harlan, 45 Kan. 484, 25 Pac. 883; Dye v. Railroad Co., 77 Kan. 488, 94 Pac. 785; Young et al. v. Gibson (No. 15,747, filed October, 1909) 105 Pac. 3. There is no contention in this case that the land was not subject to taxation or was not assessed, or that the taxes had been paid or the land redeemed as provided by law. The facts by which the appellant undertook to invalidate the deed were certainly not within the exceptions prescribed by section 7680, and were offered to dispute the recitals of fact in the deed. We find no error in the proceeding, and the judgment is affirmed. judgment is affirmed. All the Justices con |