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railroad companies which propose to con assessment." The difference between the act struct a line of railroad into or through such amended and the amendment is that the ity. The line must come into the city and latter gives to the person seeking relief a pass through it, or, as stated in the proviso right of action earlier in the tax proceedings, in section 5911: “No such bonds shall be and also gives to such person a right to have issued until the railroad to which it is pro an injunction against any public officer, posed to extend aid for the purposes herein board, or body to restrain them from enterbefore indicated shall be completed and in ing into contracts which would result in imoperation through the city voting in favor of posing upon his property an illegal tax. The such aid, and the issuance of such bonds, or plaintiff might have waited until an attempt to such point in such city as may be specified was made to sell its property for the nonin the proposition set forth in the petition payment of the taxes levied to pay this bondrequired by this act.” The proposition “in ed indebtedness; but it was not compelled to" indicates entrance, passing from the out to do so. The statute gives the right of acside to the inside, a penetrating, and was tion at the inception of any attempt to create used in this statute in its ordinary and gen such illegal burden. The plaintiff is not suerally accepted meaning, implying that the ing on behalf of the public or in the public's line of railroad to which a city can extend

interest, but in its own name, for the proaid inust be a line entering into the city, and

tection of its own property. A judgment in must of necessity, therefore, come from the

its favor may result in relieving all the propoutside, and must either pass through the erty in the city from paying taxes to liquivity or to such point in the city as may be

date the indebtedness which the city is tryspecified in the proposition set forth in the ing to create; but that would be only an inpetition. The railroad proposed in the reti

cident in the protection of its own property, tion to be built, not being a line entering the and not a reason why it should not be permitcity or passing through it, but whose begin

ted to maintain an action at this time. ning and termination was wholly within the

For the reasons herein suggested, the order corporate limits of such city, is not such a

of the court below is reversed, and the cause line of railroad as the statute authorized a

remanded, with directions that the demurrer city to aid. Statutes authorizing municipali

be overruled, and the temporary injunction ties to extend aid to public utilities are to

allowed, and the order heretofore issued by be strictly construed, and a full and exact

this court remain in force until the mandate compliance with their provisions must be

in this case is acted upon. All the Justices shown, or the bonds in aid thereof should

concurring. not be allowed to issuie. Lewis v. ('om'rs of Bourbon County, 12 Kan. 186; Cowdrcy v.

SMITII, J. I concur in the foregoing deciTown of Caneadea (C. C.) 16 Fed. 532. Au

sion upon the questions discussed in the opin

ion, which embrace all that are necessary thority cannot be found in the statute authorizing a city of the second class to vote

to decide the case. The language used, howaid and issue bonds to aid a railroad cor

ever, may seem to justify the inference that poration to purchase lands for a right of way,

if the petition were for the calling of an enot grounds, or terminal facilities whose

election upon the question of voting aid to a

railroad to be built into or through the city, entire line is within the limits of the city. The petition presented to the mayor and

and all of the proceedings conformed to the council in this instance ('ontined the entire

petition, and the railroad had been built line of railroad to be built within the city

"into" the city, the judgment of the court limits. The bonds are therefore void.

below would have been affirmed. It is con

tended that the evidence shows that all the It is argued by the defendant that plaintiff cannot maintain this action, because in the

proceedings contemplated the construction of very nature of things a judgment in its favor

a street railroad only, and that the railroad would relieve all the taxpayers of the city

so far completed is only a street railroad from the burden which would be imposed

with unusually heavy rails. It should not

be inferred that this decision in any sense upon them if the bonds were issued, where

determines what character of railroads citfore the plaintiffs put themselves in the at

ies are authorized by the statute cited in titude of bringing an action for the benefit

the decision to aid. of the public. Section 1, c. 334, p. 550, Laws of 1905, amendatory of section 2.33 of the Code of Civil Procedure, reads as follows:

(74 Kan. 651) "An injunction may be granted to enjoin the

BUNKER et al. v. CITY OF HUTCHINillegal levy of any tax, charge, or assessment,

SON et al. or the collection of any illegal tax, charge

(Supreme Court of Kansas. Nov. 10, 1906. or assessment, or any proceeding to enforce

Rehearing Denied Dec. 8, 1906.) the same, or to enjoin any public officer,

1. MUNICIPAL CORPORATIONS - PUBLIC IMboard or body from entering into any contract PROVEMENTS-CONTRACTS-ACTION BY Taxor doing any act not authorized by law that PAYER,

An owner of property may, under chapter may result in the creation of any public bur- 334, p. 5.0 of the Laws of 1905, maintain an den or the levy of any illegal tax, charge or action against the mayor and council to enjoin

them from entering into any contract for the paving of a street of the city, or the doing of any illegal act which may result in the creation of a public burden or the levy of any illegal tax, charge, or assessment, although the amount to be charged against his property has not been ascertained.

|Fd. Note.--For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, $8 812-816, 21.58-2162.] 2. SAME-AWARDING CONTRACTS.

The statute governing cities of the second class does not require that contracts for the paving of streets shall be let to the lowest bidder, but the inanner of awarding such contracts is left to the sound discretion of the mayor and council.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 851.] 3. SAME--USE OF PATENTED ARTICLES.

In such a case the mayor and council cannot tie their own hands, nor limit the discretion vested in them, by the passage of an ordinance requiring competitive bidding, and such ordinance will not prevent them from contracting in good faith for a pavement in which patented articles or processes are used.

[Ed. Wote.--For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, $ 8.71.]

(Syllabus by the Court.)

Error from District Court, Reno County ; P. J. Galle, Judge.

Action by L. A. Bunker and others against the city of Hutchinson and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Geo. A. Vandeveer and F. L. Martin, for plaintiffs in error. A. C. Malloy (Prigg & Williams, of counsel), for defendants in error.

monopoly mentioned, and the combination of the parts covered by the patent with those not so covered, practically prevented competition or the letting of the pavement to the lowest responsible bidder, and that in this respect it violated a city ordinance. The ordinance in terms provides that the mayor and council shall let such contracts "to the lowest responsible bidder, as determined by the mayor and council; the right being reserved by said mayor and council to reject any and all bids.” The petition set out the proceedings of the mayor and council relating to the matter, including the ordinances authorizing the paving, as well as the levy. ing of special assessments to pay for it.

The defendants first contend that plaintiffs had no right to maintain the action when it was brought; that, if they had a right of action, this one was prematurely brought; and that the state was the only party which could then institute a proceeding. This contention is based upon the theory that the owners of abutting property affected by the illegal tax proceedings may not institute an action to enjoin an assessment against their property until the amount chargeable against it has been ascertained. Until the passage of a recent statute it was held that such an owner of property was not so far affected by preliminary proceedings, which had not been brought up to the ascertainment of an assessment against his property, as to give him a right of action to enjoin the progress of a proposed improvement. Bridge Company v. Com’rs of Wyandotte County, 10 Kan. 326; Challiss v. City of Atchison, 39 Kan. 276, 18 Pac. 1983; Mason v. City of Independence, 61 Kan. 188, 59 Pac. 272. The Legislature of 1.905, however, expanded the remedy of injunction against the levy of an illegal tax, charge, or assessment by permitting a person whose property might be affected by such a tax, charge, or assessment "to enjoin any public officer, board or body from entering into any contract, or doing any act not authorized by law, that may result in the creation of any public burden, or the levy of any illegal tax, charge or assessment." Laws 1903, p. 550, c. 334, § 1; Water, Light & Gas Co. v. Hutchinson Interurban Railway Co. (just decided) 87 Pac. 883. Defendants call attention to a part of the act authorizing cities of the second class to levy assessments for the improvement of a street. which provides that “no suit to set aside the said assessment shall be brought after the expiration of thirty days from the time the amount due on such lot liable for such assessment is ascertained." Gen. St. 1901, $ 1016. It is contended that this section specially applies to the matters of improving streets and must control in actions of this character. The provision, as will be observed, gives no remedy. An owner must look elsewhere for the remedy of injunction. But in it is found a limitation on the remedies which the Code provides. It is no more than a

JOHNSTON, C. J. The district court sustained a demurrer to the petition of L. A. Bunker and others, who sought to enjoin the city of Hutchinson from providing for assessments and taxes to pay for the paving and curbing of Main street in that city. On a petition of property owners asking for the construction of a bitulithic pavement, an ordinance was passed providing for the building of such pavement, and in pursuance of that ordinance a contract to curb and pave the street was awarded to the Kansas Bitulithic Paving Company, which proceeded with the work. Property owners contested some of the preliminary proceedings, but these were sustained by the courts. Carey Salt ('0. V. City of Hutchinson (Kan. Sup.) 82 Pac. 721. In their petition in this case the plaintiffs allege that the contract and other steps taken were unwarranted and illegal, because the bitulithic pavement is a monopoly owned by Warren Bros., who have an interest in the Kansas Bitulithic Paving Company; that portions of the material, process, and machinery are covered by letters patent and trade-marks, which practically gives Warren Bros. and those with whom they act a monopoly of the contracts for bitulithic pavement. It is also averred that their pavement is not superior to that made out of similar material, by others, which may be had at less cost. It is further alleged that the

statute of limitation, which prohibits the ing upon that body. Can that tribunal thus bringing of a suit of any kind to annul an tie its own hands? It was given the discre. assessment more than 30 days after the tion to contract for any material, and with amount due on the assessment is ascertained. or without competitive bidding, as it might The plaintiffs were, therefore, entitled to deem wise or best. Can it limit a discretion the benefits of the act of 1905, and could which, it must be presumed, was vested in it challenge by injunction any step taken or the for the public good? We think not. The limdoing of any act by the city council not its of the powers and duties of the mayor authorized by law which might result in the and council are found in the charter act. levy of an illegal tax or assessment against They cannot exercise a power not conferred their property.

therein, nor surrender or shirk a duty or On the merits of the case the principal | responsibility which it places upon them. contention is that there was in fact no com The discretion was lodged in them for the petition in the letting of the contracts for protection and benefit of the people. They the bitulithic pavement. If it were assumed cannot surrender that discretion any more that the law required competitive bidding than the Legislature can divest itself of the for such work, the fact that the material discretion placed in it. The passage of an which entered into it was covered by letters act by the Legislature does not tie its hands patent, and therefore under the control of

or limit the legislative discretion which the a single party, would not necessarily defeat a people have conferred upon it. The passage contract, nor prevent the city from obtaining of an act has no binding effect upon the same the use of the patented article. Yarnold v.

or any subsequent Legislature, unless conCity of Lawrence, 15 Kan. 126; State ex rel.

tracts or vested rights have arisen under it. v. Commissioners of Shawnee County, 57 Kan. Gilleland v. Schuyler, 9 Kan. 569. This ques 267, 45 Pac. 616. But is competitive bidding tion was before the Supreme Court of Calirequired? There is no charter provision or fornia in the case of Thompson v. Board of statute governing cities of the second class Trustees of City of Alameda, 144 Cal. 281, which requires the mayor and council to let 77 Pac. 951, and it was there expressly held contracts for paving or other like improve that "the board of trustees of a city may not ments to the lowest bidder. In other statutes by ordinance or otherwise, divest itself, for providing for public structures or the making

any length of time, of legislative and discreof public improvements competitive bidding tionary powers vested in it by the general is required; but for some reason no such pro law.” In the case of City of Atlanta v. Stein, vision is made for the letting of such con 111 Ga. 789, 36 S. E. 932, 51 L. R. A. 335, tracts in a city of the second class. The the validity of an ordinance adopted by the mayor and council are, therefore, vested with

mayor and general council, requiring the full discretion as to the kind of pavement union label on all city printing, was in conwhich shall be used, and also as to how troversy. The charter did not require the the contracts for it shall be let. It is gen. mayor and general council to let contracts for erally regarded that competitive bidding for public work to the lowest bidder; but, under public work is a measure of safety which its provisions, the municipal authorities were prevents excessive or fraudulent allowances invested with a wide discretion. In holding for such work; but, as counsel have said, the ordinance to be invalid, the court recombinations between bidders have been marked: “The vice of the ordinance now known to be made so that there was in fact

under consideration is that it cuts off the no competition, and instead of being a pro power to fully and freely exercise that very tection the plan was used as a method of ob discretion which the public good requires the taining extravagant allowances from the pub mayor and general council to exercise in maklic treasury. The Legislature may have con ing contracts. It effectually ties their hands, cluded that to compel the mayor and council and prevents their availing themselves of opto accept the lowest bid would not be the portunities to make advantageous agreements wisest or safest plan, and might not secure in behalf of the city, which it is idle to say the best material for the paving nor the would not be presented were this ordinance highest skill in constructing it. As a safe out of the way. We cannot, therefore, escape guard for the public interest provision was the conclusion that in adopting this ordinance made for a detailed estimate of the cost of the mayor and general council exceeded their a street improvement by the city engineer, authority.” The case of Fineran v. Central and that no contract should be let for the Bitulithic Paving Co. (Ky.) 76 S. W. 415, is work in excess of the estimated cost. This is cited as an authority that an ordinance resubstantially the only limitation upon the quiring competitive bidding is as binding on discretion of the mayor and council in con the council that passed it as if the provision tracting for such an improvement.

had been inserted in the charter. There the In this case, as we have seen, the mayor ordinance was based on a charter provision, and council passed an ordinance providing not that competitive bidding for contracts was. that the work should be let to the lowest absolutely required, but that the council responsible bidder, and it is argued that the should adopt a uniform system to govern ordinance is the law of the case and is bind street construction. This provision was legis

lative authority to the council to limit its Action by A. McInturff and others against discretion. When the uniform system was the city of Hutchinson and others. Judgadopted, as the charter provided, it was, ment for defendants, and plaintiffs bring erof course, binding on the council until it ror.

Affirmed. was modified or repealed.

Geo. A. Vandeveer and F. L. Martin (HetSince the statute does not limit the dis

tinger Bros., of counsel), for plaintiffs in ercretion of the mayor and council, not author

ror. Prigg & Williams and A. C. Malloy, for ize its limitation, the ordinance enacted did

defendants in error. not control their discretion and is without binding force. Their discretion is not an

PER CURIAM. This was an action to arbitrary one, but must be exercised honest

enjoin the performance of a contract to pave ly and in good faith. They are to act on the

a part of Avenue A in the city of Hutchindictates of their own judgment and con

The contract is similar in its provisions science, and not on the judgment of others;

to the one involved in Bunker et al. v. City and the fact that their judgment may not

of Hutchinson et al. (just decided), 87 Pac. accord with that of the court, or that their

881. That case was disposed of on a dediscretion was not exercised as the court

murrer to plaintiffs' petition, while in this would have exercised it, is no ground for

case a temporary injunction was refused nullifying their action. Fraud or corruption

after a hearing. The decision in the Bunker is not charged against the mayor and council,

Case fairly covers the legal propositions in but so far as appears they exercised an honest

this case, and nothing is found in the testidiscretion and for what they deemed the

mony which takes it out of the rule of that best interests of the city. Counsel seem to

decision. contend that, even if there is no require

The judgment will therefore be affirmed. ment of law for competitive bidding, it was still the duty of the city officers, in the interests of the public, to let the contract to

(48 Or. 561) the lowest bidder. In Yarnold v. City of

BOOTHE V. SCRIBER.

. Lawrence, supra, it was held that, in the

(Supreme Court of Oregon. Dec. 11, 1906.) absence of an express direction of law to let

1. APPEAL-TRANSCRIPT_TIME FOR FILING. contracts to the lowest bidder, no letting or

B. & C. Comp. § 553, requires a transcript competition is necessary. In Spelling on Ex on appeal to be filed with the clerk of the Sutraordinary Relief, § 718, it is said: “Where preme Court within 30 days after the appeal no conditions or restrictions are imposed

is perfected. By section 549, the adverse party

is required to except to the sufficiency of the upon municipal officers in the matter of let

sureties within 5 days after the service of the unting contracts, they are not obliged to let the dertaking. By section 531, the time within which work to the lowest bidder, and cannot be

such acts shall be done is to be computed by

excluding the first day and including the last. enjoined for a refusal to do so, unless guilty

An undertaking on appeal was served August of fraud. They may exercise an unlimited 24th, and the transcript filed on September 29th. discretion, so long as they are not guilty of

Feld that, as an appeal was not perfected until a gross abuse of the discretion and do not

the expiration of the time allowed to except

to the sufficiency of the sureties, the transcript pervert their powers to such an extent as

was filed within the proper time. to amount to a fraudulent misappropriation 2. PAYMENT-EVIDENCE--COMPETENCY. of the public funds.” See, also, Schefbauer On an issue as to whether defendant, who v. Kearney, 57 N. J. Law, 588, 31 Atl. 454;

was the cashier of a bank, had by various pay

ments repaid to plaintiff a sum of money beElliott v. Minneapolis City, 59 Minn. 111,

longing to plaintiff which had been appropriated 60 N. W. 1081; Riehl v. City of San Jose, 101 by defendant, defendant produced a draft issued Cal. 442, 35 Pac. 1013; Kingsley v. City of by his bank payable to plaintiff, and paid to Brooklyn, 5 Abb. N. C. (N. Y.) 1; 20 A. & E.

him, and testified that he purchased it, and sent

it to plaintiff at his request, and that it was not Encycl. of L. 1165. There are no limita

charged on the bank books to plaintiff. Held, tions to prevent the mayor and council from that the draft and testimony were competent as obtaining and applying a patented article and

tending to show a payment.

3. SAME. process in paving a street of the city, nor

Defendant produced a draft drawn by plainis there anything alleged or shown why

tiff on defendant's bank payable to another bank the contract for bitulithic pavement made by and paid, and testified that he paid it out of his the defendant should be annulled or enjoined. own funds. Plaintiff had an open account in The judgment of the district court will

the bank. Held, that the evidence was incom

petent as the records of the bank were the proptherefore be affirmed. All the Justices con

er evidence as to who paid the draft, and precurring.

sumably the draft was paid from plaintiff's funds or charged to his account.

4. SAME. (74 Kan. 898)

Notes given by plaintiff to defendant's bank MCINTURFF et al. v. CITY OF HUTCHIN and marked "paid” by the bank, and as to SON et al.

which defendant testified that they were paid

by him at plaintiff's request, were competent Supreme Court of Kansas. Nov. 10, 1906. evidence. Rehearing Denied Dec. 8, 1906.)

5. SAME. Error from District Court, Reno County;

Defendant produced three notes made by

plaintiff to defendant's bank, having attached P. J. Galle, Judge

thereto a check of defendant payable to plaintiff

be

or bearer for a sum in exci'ss of the notes, and alleged to be due plaintiff from him on actestified to a settlement with plaintiff and that

count of the $10,623 delivered to him in Noat plaintiff's request he paid the notes, by giving the check attached, and that the difference be

vember, 1898. The defendant claims and al. tween the amount due on them in the check leges in his answer that he has paid to was paid to plaintiff in cash, and the check

plaintiff in the manner above stated on accharged to his account on the bank books. II cld,

count of the transaction mentioned in the that the notes and check were properly admitted.

complaint $176.90 more than was due him, 6. SAME. Defendant testified that at various times

and prays judgment in that amount. The he deposited sums to the credit of plaintiff, and case was tried by the court and a jury, and offered in evidence deposit slips, made out in his

resulted in a verdict and judgment in favor handwriting, and though he testified that he took the slips from the bank files, it was not

of the defendant for $103. From this judgshown that any of them were ever delivered to ment the plaintiff appeals, assigning error the bank or that it became liable for such de in the admission of testimony, and in the givposits. Iloid, that the slips were incompetent evidence.

ing of instructions. The undertaking on the

apreal was served and filed on the 24th of 1. SAME INSTRUCTIONS.

An instruction that as to the items claimed August, 1906, and the transcript was filed as a defense by defend:int "if a defense here with the clerk of this court on September they cannot be claimed as a defense by the bank 29th, following. in its action” was erroneous as misleading the bank not being a party to the action.

Leroy Lomax and Gustav Anderson, for

appellant. T. H. Crawford and J. D. Slater, Appeal from Circuit Court, Union County;

for respondent. Robert Eakin, Judge.

Action by S. S. Boothe against J. W. BEAN, C. J. (after stating the facts). Scriber. From a judgment in favor of de

The defendant moves to dismiss the appeal fendant, plaintiff appeals. Reversed.

on the ground that the transcript was not On November 28, 1898, the plaintiff deliv

filed within the time allowed by law. The ered to the defendant $10,625 to be used in

statute requires the transcript on appeal to the purchase of 100 shares of the capita!

be filed with the clerk of this court within stock of the Farmers' & Traders' Nationa. 30 days after the appeal is perfected. B. & Bank of La Grande. The stock was to have C. Comp. § 553. The appeal is not perfected been purchased within 30 days, but the de until the expiration of the time allowed by fendant failed, or was unable to make such law to except to the sufficiency of the surpurchase and retained the money, making

eties. Callahan v. Portland, etc., R. Co., 17 payments on account thereof to the plaintiff Or. 558, 21 Pac. 870; Cook v. Albina, 20 Or. from time to time, as demanded, for a period 190, 25 Pac. 386. The adverse party, or his of about seven years. During all this time

attorney, is required to except to the suffihe was the cashier of the Farmers' & Trad ciency of the sureties within five days after ers' National Bank, and the plaintiff had, in the service of the undertaking. B. & C. addition to the amount due him from defend Comp. $ 549, subd. 2. The time in which ant, an open account with the bank and from these several acts shall be done is to be time to time was depositing money with and computed by excluding the first day and in. giving notes to it, and drawing checks and cluding the last. Id. $ 531. Now, the underdrafts on his account. And it was a part taking was served on the 24th of August. of the manner of doing business between the Coniputing the time for excepting to the plaintiff and the defendant and the bank sufficiency of the sureties, according to the that checks and drafts drawn by plaintiff rule stated, the defendant had all of the on the bank were sometimes paid by the 29th in which to file such exceptions. The bank out of plaintiff's funds and at other appeal, therefore, was not perfected until times they were paid by the defendant out of the close of that day. Within 30 days therethe money due from him to the plaintiff, after, the appellant was required to file his without being entered upon the bank books, transcript. Computing the time by excludand at still other times they were paid by the ing the first day on which the transcript bank, the defendant depositing funds with could lawfully have been filed, which was the it to the credit of the plaintiff to meet the 30th of August, the 30 days did not expire same, and it was understood and agreed by until the 29th of September; and, as the and between the plaintiff and defendant that transcript was filed on that day, it was any payments and deposits made by him on within the time. The motion to dismiss will plaintiff's account were to be considered as therefore be overruled. payments on the amount due from him to the The first assignment of error is the admisplaintiff. All checks, drafts, certificates of sion in evidence on behalf of the defendant deposit, notes, etc., passing between of a draft for $125, issued by the Farmers' plaintiff and the bank, or between plaintiff & Traders' National Bank on the First Nationand the defendant, were, during all these al Bank of Union, payable to the order of times, kept by the bank and the defendant, the plaintiff, and which was indorsed by and and not returned to the plaintiff. This ac paid to him by the drawee bank. The detion was commenced in January, 1906, fendant produced this draft on the trial, against the defendant to recover $6,046.76, and testified that he purchased it of the is

the

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