96 P. 838 | Kan. | 1908
The opinion of the court was delivered by
This was a suit to enjoin the building of a sewer under a contract made between the city of Abilene and the Abilene Plumbing & Heating Company. It was brought by lot-owners to prevent the performance of the contract and the levy of special assessments upon their property to pay for the sewer, upon the alleged ground that a valid estimate of the
The principal objection to the estimate and contract was that the engineers employed to make the estimate were non-residents of Abilene, and that they were not regularly appointed and installed as city engineers. They were employed to act as engineers in behalf of the city to plan and supervise the building of a sewerage system in Abilene, and in the contract of employment it was provided that they should give a bond in the sum of $5000 for the faithful performance of their duties. They did not act generally for the city, nor perform any function as city engineers other than that connected with the construction of sewers. It appears that at the time they were designated and employed as engineers the city did not have a regularly appointed city engineer. Local engineers were designated by the city from time to time to look after sidewalks and other specific work. In the records of the city pertaining to the letting of the sewer contracts Burns & McDonnell are referred to as city engineer, and the estimate of the cost of the sewer as one made by them as city engineer. In the contract between the city and the Abilene Plumbing & Heating Company they are spoken of as consulting engineers. The trial court found “that the estimate of the cost of construction of sewers in sewer district No. 3 was not made by any person acting in the capacity of city engineer for the city of Abilene,” and it was therefore held that the estimate and contract were illegal. On this ground alone a permanent injunction was granted against the levy of any assessment or the collection of any tax upon the plaintiffs’ property to pay for the sewer.
“Before the city council shall make any contract for building bridges or sidewalks, or for any work on streets, or for any other work or improvement, an estimate of the cost thereof shall be made by the city engineer and submitted to the council; and no contract shall be entered into for any work or improvement for a price exceeding such estimate.” (Gen. Stat. 1901, § 1009.)
The evident purpose of the provision is not only to enable the council to act with intelligence in making the contract for an improvement, but it is also for the protection of the owners of property who are subject to assessment for such improvement. When an estimate is filed an owner of property who may be assessed has an opportunity to inquire into the fairness and correctness of the estimate and the approximate amount of the burden which will be imposed on his property, and may then determine whether to favor or resist the improvement. There is also the further protection that no contract can be made at a price in excess of the estimate. The provision differs materially from most of those requiring an estimate for a proposed improvement in that -it does not require a detailed estimate or statement of the items which enter into the improvement and the cost of each, nor does it require the estimate to be made under oath.
It is true, as contended, that when the statute provides a method for imposing and collecting assessments it should be strictly pursued, and that the provisions for the protection of the taxpayer must be closely followed. (Hentig v. Gilmore, County Clerk, 33 Kan. 234, 6 Pac. 304.) It would appear, however, that there has been substantial compliance with the statute and the requirements for safe-guarding the interests of taxpayers in this case. The- estimate of the cost of the sewer was made by engineers chosen by the
“The city engineer’s estimate on sewer district No. 3, showing estimated cost of $5957, was then read by the city attorney and ordered placed on file.”
Then follows a motion, which was adopted, reciting that the Abilene Plumbing & Heating Company was the lowest bidder, and that it was awarded the contract for constructing the sewers for $4178.46. It is in evidence that the company performed the work and has been
There is nothing substantial in the contention that there is inconsistency between the estimate and the contract, nor that the estimate is not properly itemized. As we have seen, the statute does not require an itemized or detailed estimate.
The judgment of the district court is reversed, and the cause remanded for further proceedings.