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railroad companies which propose to construct a line of railroad into or through such city. The line must come into the city and pass through it, or, as stated in the proviso in section 5911: "No such bonds shall be issued until the railroad to which it is proposed to extend aid for the purposes hereinbefore indicated shall be completed and in operation through the city voting in favor of such aid, and the issuance of such bonds, or to such point in such city as may be specified in the proposition set forth in the petition required by this act." The proposition “into" indicates entrance, passing from the outside to the inside, a penetrating, and was used in this statute in its ordinary and generally accepted meaning, implying that the line of railroad to which a city can extend aid must be a line entering into the city, and must of necessity, therefore, come from the outside, and must either pass through the city or to such point in the city as may be specified in the proposition set forth in the petition. The railroad proposed in the petition to be built, not being a line entering the city or passing through it, but whose beginning and termination was wholly within the corporate limits of such city, is not such a line of railroad as the statute authorized a city to aid. Statutes authorizing municipalities to extend aid to public utilities are to be strictly construed, and a full and exact compliance with their provisions must be shown, or the bonds in aid thereof should not be allowed to issue. Lewis v. Com'rs of Bourbon County, 12 Kan. 186; Cowdrey v. Town of Caneadea (C. C.) 16 Fed. 532. thority cannot be found in the statute authorizing a city of the second class to vote aid and issue bonds to aid a railroad corporation to purchase lands for a right of way, depot grounds, or terminal facilities whose entire line is within the limits of the city. The petition presented to the mayor and council in this instance confined the entire line of railroad to be built within the city limits. The bonds are therefore void.

It is argued by the defendant that plaintiff cannot maintain this action, because in the very nature of things a judgment in its favor would relieve all the taxpayers of the city from the burden which would be imposed upon them if the bonds were issued, wherefore the plaintiffs put themselves in the attitude of bringing an action for the benefit of the public. Section 1, c. 334, p. 550, Laws of 1905, amendatory of section 253 of the Code of Civil Procedure, reads as follows: “An injunction may be granted to enjoin the illegal levy of any tax, charge, or assessment, or the collection of any illegal tax, charge or assessment, or any proceeding to enforce the same, or 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." The difference between the act amended and the amendment is that the latter gives to the person seeking relief a right of action earlier in the tax proceedings, and also gives to such person a right to have an injunction against any public officer, board, or body to restrain them from entering into contracts which would result in imposing upon his property an illegal tax. The plaintiff might have waited until an attempt was made to sell its property for the nonpayment of the taxes levied to pay this bonded indebtedness; but it was not compelled to do so. The statute gives the right of action at the inception of any attempt to create such illegal burden. The plaintiff is not suing on behalf of the public or in the public's interest, but in its own name, for the protection of its own property. A judgment in its favor may result in relieving all the property in the city from paying taxes to liquidate the indebtedness which the city is trying to create; but that would be only an incident in the protection of its own property, and not a reason why it should not be permitted to maintain an action at this time.

For the reasons herein suggested, the order of the court below is reversed, and the cause remanded, with directions that the demurrer be overruled, and the temporary injunction allowed, and the order heretofore issued by this court remain in force until the mandate in this case is acted upon. All the Justices concurring.

SMITH, J. I concur in the foregoing decision upon the questions discussed in the opinion, which embrace all that are necessary to decide the case. The language used, however, may seem to justify the inference that if the petition were for the calling of an election upon the question of voting aid to a railroad to be built into or through the city, and all of the proceedings conformed to the petition, and the railroad had been built "into" the city, the judgment of the court below would have been affirmed. It is contended that the evidence shows that all the proceedings contemplated the construction of a street railroad only, and that the railroad so far completed is only a street railroad with unusually heavy rails. It should not be inferred that this decision in any sense determines what character of railroads cities are authorized by the statute cited in the decision to aid.

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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.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 842-846, 2158-2162.]

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 manner 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. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 854.] (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 Affirmed.

error.

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

On

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. 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

Co. 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

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 levying 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. 195; Mason v. City of Independence, 61 Kan. 188, 59 Pac. 272. The Legislature of 1905, 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 1905, 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

statute of limitation, which prohibits the bringing of a suit of any kind to annul an assessment more than 30 days after the amount due on the assessment is ascertained. The plaintiffs were, therefore, entitled to the benefits of the act of 1905, and could challenge by injunction any step taken or the doing of any act by the city council not authorized by law which might result in the levy of an illegal tax or assessment against their property.

On the merits of the case the principal contention is that there was in fact no competition in the letting of the contracts for the bitulithic pavement. If it were assumed that the law required competitive bidding for such work, the fact that the material which entered into it was covered by letters patent, and therefore under the control of a single party, would not necessarily defeat a contract, nor prevent the city from obtaining the use of the patented article. Yarnold v. City of Lawrence, 15 Kan. 126; State ex rel. v. Commissioners of Shawnee County, 57 Kan. 267, 45 Pac. 616. But is competitive bidding required? There is no charter provision or statute governing cities of the second class which requires the mayor and council to let contracts for paving or other like improvements to the lowest bidder. In other statutes providing for public structures or the making of public improvements competitive bidding is required; but for some reason no such provision is made for the letting of such contracts in a city of the second class. The mayor and council are, therefore, vested with full discretion as to the kind of pavement which shall be used, and also as to how the contracts for it shall be let. It is gen erally regarded that competitive bidding for public work is a measure of safety which prevents excessive or fraudulent allowances for such work; but, as counsel have said, combinations between bidders have been known to be made so that there was in fact no competition, and instead of being a protection the plan was used as a method of obtaining extravagant allowances from the public treasury. The Legislature may have concluded that to compel the mayor and council to accept the lowest bid would not be the wisest or safest plan, and might not secure the best material for the paving nor the highest skill in constructing it. As a safeguard for the public interest provision was made for a detailed estimate of the cost of a street improvement by the city engineer, and that no contract should be let for the work in excess of the estimated cost. This is substantially the only limitation upon the discretion of the mayor and council in contracting for such an improvement.

In this case, as we have seen, the mayor and council passed an ordinance providing that the work should be let to the lowest responsible bidder, and it is argued that the ordinance is the law of the case and is bind

ing upon that body. Can that tribunal thus tie its own hands? It was given the discre tion to contract for any material, and with or without competitive bidding, as it might deem wise or best. Can it limit a discretion which, it must be presumed, was vested in it for the public good? We think not. The limits of the powers and duties of the mayor and council are found in the charter act. They cannot exercise a power not conferred therein, nor surrender or shirk a duty or responsibility which it places upon them. The discretion was lodged in them for the protection and benefit of the people. They cannot surrender that discretion any more than the Legislature can divest itself of the discretion placed in it. The passage of an act by the Legislature does not tie its hands or limit the legislative discretion which the people have conferred upon it. The passage of an act has no binding effect upon the same or any subsequent Legislature, unless contracts or vested rights have arisen under it. Gilleland v. Schuyler, 9 Kan. 569. This ques tion was before the Supreme Court of California in the case of Thompson v. Board of Trustees of City of Alameda, 144 Cal. 281, 77 Pac. 951, and it was there expressly held that "the board of trustees of a city may not. by ordinance or otherwise, divest itself, for any length of time, of legislative and discretionary powers vested in it by the general law." In the case of City of Atlanta v. Stein, 111 Ga. 789, 36 S. E. 932, 51 L. R. A. 335, the validity of an ordinance adopted by the mayor and general council, requiring the union label on all city printing, was in controversy. The charter did not require the mayor and general council to let contracts for public work to the lowest bidder; but, under its provisions, the municipal authorities were invested with a wide discretion. In holding the ordinance to be invalid, the court remarked: "The vice of the ordinance now under consideration is that it cuts off the power to fully and freely exercise that very discretion which the public good requires the mayor and general council to exercise in making contracts. It effectually ties their hands, and prevents their availing themselves of opportunities to make advantageous agreements in behalf of the city, which it is idle to say would not be presented were this ordinance out of the way. We cannot, therefore, escape the conclusion that in adopting this ordinance the mayor and general council exceeded their authority." The case of Fineran v. Central Bitulithic Paving Co. (Ky.) 76 S. W. 415, is cited as an authority that an ordinance requiring competitive bidding is as binding on the council that passed it as if the provision had been inserted in the charter. There the ordinance was based on a charter provision, not that competitive bidding for contracts was absolutely required, but that the council should adopt a uniform system to govern street construction. This provision was legis

lative authority to the council to limit its discretion. When the uniform system was adopted, as the charter provided, it was, of course, binding on the council until it was modified or repealed.

Since the statute does not limit the dis cretion of the mayor and council, not authorize its limitation, the ordinance enacted did not control their discretion and is without binding force. Their discretion is not an arbitrary one, but must be exercised honestly and in good faith. They are to act on the dictates of their own judgment and conscience, and not on the judgment of others; and the fact that their judgment may not accord with that of the court, or that their discretion was not exercised as the court would have exercised it, is no ground for nullifying their action. Fraud or corruption is not charged against the mayor and council, but so far as appears they exercised an honest discretion and for what they deemed the best interests of the city. Counsel seem to contend that, even if there is no requirement 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 the lowest bidder. In Yarnold v. City of Lawrence, supra, it was held that, in the absence of an express direction of law to let contracts to the lowest bidder, no letting or competition is necessary. In Spelling on Extraordinary Relief, § 718, it is said: "Where no conditions or restrictions are imposed upon municipal officers in the matter of letting contracts, they are not obliged to let the work to the lowest bidder, and cannot be enjoined for a refusal to do so, unless guilty of fraud. They may exercise an unlimited discretion, so long as they are not guilty of a gross abuse of the discretion and do not pervert their powers to such an extent as to amount to a fraudulent misappropriation of the public funds." See, also, Schefbauer v. Kearney, 57 N. J. Law, 588, 31 Atl. 454; Elliott v. Minneapolis City, 59 Minn. 111, 60 N. W. 1081; Riehl v. City of San Jose, 101 Cal. 442, 35 Pac. 1013; Kingsley v. City of Brooklyn, 5 Abb. N. C. (N. Y.) 1; 20 A. & E. Encycl. of L. 1165. There are no limitations to prevent the mayor and council from obtaining and applying a patented article and process in paving a street of the city, nor is there anything alleged or shown why the contract for bitulithic pavement made by the defendant should be annulled or enjoined.

The judgment of the district court will therefore be affirmed. All the Justices concurring.

(74 Kan. 898)

MCINTURFF et al. v. CITY OF HUTCHINSON et al.

(Supreme Court of Kansas.

Nov. 10, 1906. Rehearing Denied Dec. 8, 1906.)

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

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PER CURIAM. This was an action to enjoin the performance of a contract to pave a part of Avenue A in the city of HutchinThe contract is similar in its provisions to the one involved in Bunker et al. v. City of Hutchinson et al. (just decided), 87 Pac. 884. That case was disposed of on a demurrer to plaintiffs' petition, while in this

a temporary injunction was refused after a hearing. The decision in the Bunker Case fairly covers the legal propositions in this case, and nothing is found in the testimony which takes it out of the rule of that decision.

The judgment will therefore be affirmed.

(48 Or. 561)

BOOTHE v. SCRIBER. (Supreme Court of Oregon. Dec. 11, 1906.) 1. APPEAL-TRANSCRIPT-TIME FOR FILING.

B. & C. Comp. § 553, requires a transcript on appeal to be filed with the clerk of the Supreme Court within 30 days after the appeal is perfected. By section 549, the adverse party is required to except to the sufficiency of the sureties within 5 days after the service of the undertaking. By section 531, the time within which such acts shall be done is to be computed by excluding the first day and including the last. An undertaking on appeal was served August 24th, and the transcript filed on September 29th. Held that, as an appeal was not perfected until the expiration of the time allowed to except to the sufficiency of the sureties, the transcript was filed within the proper time. 2. PAYMENT-EVIDENCE-COMPETENCY.

On an issue as to whether defendant, who was the cashier of a bank, had by various payments repaid to plaintiff a sum of money belonging to plaintiff which had been appropriated by defendant, defendant produced a draft issued by his bank payable to plaintiff, and paid to him, and testified that he purchased it, and sent it to plaintiff at his request, and that it was not charged on the bank books to plaintiff. Held, that the draft and testimony were competent as tending to show a payment. 3. SAME.

Defendant produced a draft drawn by plaintiff on defendant's bank payable to another bank and paid, and testified that he paid it out of his own funds. Plaintiff had an open account in the bank. Held, that the evidence was incompetent as the records of the bank were the proper evidence as to who paid the draft, and presumably the draft was paid from plaintiff's funds or charged to his account.

4. SAME.

Notes given by plaintiff to defendant's bank and marked "paid" by the bank, and as to which defendant testified that they were paid by him at plaintiff's request, were competent evidence.

5. SAME.

Defendant produced three notes made by plaintiff to defendant's bank, having attached thereto a check of defendant payable to plaintiff

or bearer for a sum in excess of the notes, and testified to a settlement with plaintiff and that at plaintiff's request he paid the notes, by giving the check attached, and that the difference between the amount due on them and the check was paid to plaintiff in cash, and the check charged to his account on the bank books. Held, that the notes and check were properly admitted. 6. SAME.

Defendant testified that at various times he deposited sums to the credit of plaintiff, and offered in evidence deposit slips, made out in his handwriting, and though he testified that he took the slips from the bank files, it was not shown that any of them were ever delivered to the bank or that it became liable for such derosits. Held, that the slips were incompetent evidence.

1. SAME-INSTRUCTIONS.

An instruction that as to the items claimed as a defense by defendant "if a defense here they cannot be claimed as a defense by the bank in its action" was erroneous as misleading the bank not being a party to the action.

Appeal from Circuit Court, Union County; Robert Eakin, Judge.

Action by S. S. Boothe against J. W. Scriber. From a judgment in favor of de fendant, plaintiff appeals. Reversed.

On November 28, 1898, the plaintiff delivered to the defendant $10,625 to be used in the purchase of 100 shares of the capita! stock of the Farmers' & Traders' Nationa. Bank of La Grande. The stock was to have been purchased within 30 days, but the defendant failed, or was unable to make such purchase and retained the money, making payments on account thereof to the plaintiff from time to time, as demanded, for a period of about seven years. During all this time he was the cashier of the Farmers' & Traders' National Bank, and the plaintiff had, in addition to the amount due him from defendant, an open account with the bank and from time to time was depositing money with and giving notes to it, and drawing checks and drafts on his account. And it was a part of the manner of doing business between the plaintiff and the defendant and the bank that checks and drafts drawn by plaintiff on the bank were sometimes paid by the bank out of plaintiff's funds and at other times they were paid by the defendant out of the money due from him to the plaintiff, without being entered upon the bank books, and at still other times they were paid by the bank, the defendant depositing funds with it to the credit of the plaintiff to meet the same, and it was understood and agreed by and between the plaintiff and defendant that any payments and deposits made by him on plaintiff's account were to be considered as payments on the amount due from him to the plaintiff. All checks, drafts, certificates of deposit, notes, etc., passing between the plaintiff and the bank, or between plaintiff and the defendant, were, during all these times, kept by the bank and the defendant, and not returned to the plaintiff. This action was commenced in January, 1906, against the defendant to recover $6,046.76,

alleged to be due plaintiff from him on account of the $10,625 delivered to him in November, 1898. The defendant claims and alleges in his answer that he has paid to plaintiff in the manner above stated on account of the transaction mentioned in the complaint $176.90 more than was due him, and prays judgment in that amount. The case was tried by the court and a jury, and resulted in a verdict and judgment in favor of the defendant for $463. From this judgment the plaintiff appeals, assigning error in the admission of testimony, and in the giving of instructions. The undertaking on the appeal was served and filed on the 24th of August, 1906, and the transcript was filed with the clerk of this court on September 29th, following.

Leroy Lomax and Gustav Anderson, for appellant. T. H. Crawford and J. D. Slater, for respondent.

BEAN, C. J. (after stating the facts). The defendant moves to dismiss the appeal on the ground that the transcript was not filed within the time allowed by law. The statute requires the transcript on appeal to be filed with the clerk of this court within 30 days after the appeal is perfected. B. & C. Comp. § 553. The appeal is not perfected until the expiration of the time allowed by law to except to the sufficiency of the sureties. Callahan v. Portland, etc., R. Co., 17 Qr. 558, 21 Pac. 870; Cook v. Albina, 20 Or. 190, 25 Pac. 386. The adverse party, or his attorney, is required to except to the sufficiency of the sureties within five days after the service of the undertaking. B. & C. Comp. 549, subd. 2. The time in which these several acts shall be done is to be computed by excluding the first day and including the last. Id. § 531. Now, the undertaking was served on the 24th of August. Computing the time for excepting to the sufficiency of the sureties, according to the rule stated, the defendant had all of the 29th in which to file such exceptions. The appeal, therefore, was not perferted until the close of that day. Within 30 days thereafter, the appellant was required to file his transcript. Computing the time by excluding the first day on, which the transcript could lawfully have been filed, which was the 30th of August, the 30 days did not expire until the 29th of September; and, as the transcript was filed on that day, it was within the time. The motion to dismiss will therefore be overruled.

The first assignment of error is the admission in evidence on behalf of the defendant of a draft for $125, issued by the Farmers' & Traders' National Bank on the First National Bank of Union, payable to the order of the plaintiff, and which was indorsed by and paid to him by the drawee bank. The defendant produced this draft on the trial, and testified that he purchased it of the is

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