The Wichita daily eagle., 1894-01-30
REED DECIDED 1T
HE SUSTAINS THE INJUNCTION
AGAINST TREASURER DORAN.
The Evidence Shows That the Peti-
tions We're Not Signed by
Majority Of the Property
Owners Judge Wall
Was TickIcd.


The decision was made in the actor
brought by Barnes. Schweiter and Ian,
to enjoin the collection of the speca
assessment or tax for paving Dougla:
avenue. The cases were brought to test
the validity of the assessment and gener
ally property owners on that street have
refused to pay their taxes awaiting the
outcome of these actions, as most of the
owners on the avenue have combined fol
the purpose of testing the question.
The cases were tried, evidence submitted
and arguments made some time ago, but
by reason of the importance of the litigs-
tions, Judge Reed made most thorough
and searching investigation of the law
bearing upon the subject, and it took him
about two hours to render the decision,
thoroughly discussing every legal aues-
tion involved.
The judge said without much difficulty
| he had reached an opinion satisfactory to
himself and about which be had but little
] doubt when the cases we're submitted
upon the argument but that by reason of
its Importance to the city he had in
vestigated it thoroughly and was fully
convinced upon the evidence submitted
that the whole proceeding was invalid.
The judge referred to the statutes of 1891,
under which the proceedings to pave
Douglas avenue were had. That statute
provides that before any resolution to
| pave or macadamiZe any street shall be of
any validity there shall first be presented
| to the city council and spread upon the
records a petition signed by the owners of
a ma jority of the front feet front.
/ ing upon the street to be paved.
| Thus the court held iii view Of the re-
peated decisions of the supreme court of
! this state and the doctrine laid down by
teXt writers upon the subject was juris-
diction, in other words, tina: unless such a
petition was presented and acted upon,
the city could acquire no jurisdiction and
that all proceedings done without such a
petition would be void. In round num-
bers the total number of feet to be paved
was 6, 700; the petition presented to
the city council and acted upon
by it contained names representing in
round numbers 8 400 feet.
1t was shown that many signed the petit
ton who were not owners; also that many
who signed had no authority to sign for
the owners; also that some of the signing
Ndo CObuIIloudi pOu tbC NOl n hOb CooeioS
more than given amount, and in one or
two instances the same lots were repre-
sented upon the petition twice according
to the evidence. Some 600 or 200 feet were
represented upon the petition twice with
out any right or authority, thus making
the number of feet represented in the petit
tion fall far short of the majority.
The court held that in as much as the
city council acted without jurisdiction and
that the proceedings Hereunder were void.
that the section of the statute Civ
ing the property owners redress by
injunction, in case of invalid assessment
or taxation would apply, and that the
thirty days statute Of limitations applies
only to cases Of Irregularities and not to
an absolutely void proceeding; citing re-
peated decisions of the supreme court of
the state upon that subject. 1t was con-
tended by counsel for the city that the
validity of the proceedings could not be
attacked in the collateral action, but the
Judge held that, inasmuch as the statutes
provided the remedy for injunction of any
legal assessment, that itcould be attacked,
and cited some very recent cases passed
upon by the supreme court of the state.
Gus cases where petitions must te pre-
sented signed by certain number of
property owners before a board of county
commissioners, then city councils are enl-
powered to make improvements, that the
supreme court has held that property
owner may show that requisite number
of signers were not upon such petitions,
and it has been uniformly so held, be-
ginning in the third volume of Kansas re-
ports. down to the present time.
1t was contended that on the part of
the city that those who signed the
petition We're stopped from now
questioning the validity of the pro-
ceedings. Schweiter did not sign
any petition, but Barnes and
Lane did sign the petition but the petition
did not represent or pretend to recite that
it was signed by the owners of major
ity.
The judge said that the last tins this
question was before the supreme court
it was in a case reported in the next TO the
last volume of the Kansas reports. the
49th Kansas, in the case of the commits
sioners of WyandOtte county VS.. Brown;
the following being the law upon the sub
ject as laid down by Chief Justice Horton:
'The mere signing of petition for the
Improvement of road will not stop
land owner, who never presented the peti-
tiou and never knew that it was fatally
defective, when presented, until after
all the work was completed from alleg-
ing that board OF county commits
toner's had no authority TO authorize the
improvements or cause assessments TO be
made therefor, when such improvements
We're made in a manner different from
that which the petition requested and IN
violation OF the provisions OF the statute.
Il appears in evidence that the petition
was circulated by the agent of the Barber
Asphalt Paving Company, that those
s igning it did not present il to the city
council nor represent TO 1t that it was
signed by the owners o. a majority of tie
from: feet upon the street. 1t was also
shown that the plaintiffs did not know
that the city had acted without the
requisite signatures.
The court in passing said that IN as much
as there were probably other actions
awaiting the result OF the ones now being
determined, that be would say that be
found il 10 be the law OF Kansas that the
mere signing OF a petition, such as the one
presented TO the city council, would not
estop such persons from enjoinny an IL
legal and invalid assessment, but that in
order to estop him, is must show that he
either presented II to the city council and
thereby representing it contained the
requisite names, or that he actively
assisted therein aud encouraged and
caused the CITY council TO act upon such
/ petition. In such a case, it was intimsted
that be would hold that such a person
| would be estopped-