State ex rel. Shaw v. Mayor of Wyandotte , 4 Kan. 430 ( 1868 )

By the Court,

Safford, J.

The relators made application to the city council of Wyandotte, that under and by virtue of the provisions of sec. 42, chap. 68, laws of* 1867, the said city council should proceed to order and direct a reassessment of certain taxes from which they, the relators, might be enabled to realize a large sum of money, which they claimed to be due to them from the city, for work done upon certain streets in said city. In their said application the relators set forth that a special tax had previously been levied to provide means for the payment of the money so due to them for said work, but owing to the illegal mode of procedure adopted for the levying, assessing and collecting of said tax, the same had failed of being collected, and that it never could be collected.

The provisions of the section relied on are as follows : In case any city council has attempted to levy or assess any taxes for improvements, or for the payment of any bonds or other evidences of debt that are or may have been informal, illegal or void, for the want of sufficient authority, or other cause, the councils of such cities, at the time fixed for levying general taxes, shall relevy and reassess any such taxes in the manner provided by this act, or shall bond such taxes and assessments, as herein provided for other city indebtedness.

The city council of Wyandotte refused the application of the relators to reassess the said tax, or to bond the amount due.

Taking it for granted that the showing of the relators, ih their application to the city council, was correct in all the statements therein contained, there was doubtless a proper case for the consideration of said council, under the provisions of the section above quoted, if such application was presented for their action thereon at the proper time. But it is shown that the petition or application of the relators was made and acted upon on the 7th day of January, A. D. 1868, while the provision of the section referred to is to the effect that such reassessment and relevy of an informal, illegal or void tax, as was asked for by the relators, must be ordered at the time fixed for levying general taxes.

It perhaps was well and proper enough for the relators to make their showing to the council at any time they chose to do so, but they could not reasonably expect it to be acted upon until the time for levying general taxes should arrive, and especially so if the council should direct a relevy of the tax. We cannot, therefore, say that because the city council of Wyandotte refused the request of the relators when presented and considered at an improper time, they would refuse a like application if made at a time when the law authorized them to act in the premises, and to relevy the tax or bond the amount, as they might think best for the city. We think the record does not present a case for our interference.

The same question here discussed was presented to and considered by this court in' the case of The State ex rel. Nathaniel Price v. The Board of State Canvassers. 3 Kans., 88.

Mandamus refused.

All the justices concurring.