City of Argentine v. Daggett

53 Kan. 491 | Kan. | 1894

The opinion of the court was delivered by

AlleN, J.:

The main question discussed both in the briefs and on the oral argument is, as to the power of the city council to change the grade and bind the property owners after the presentation of a petition for the improvement, it being contended on the part of the city that there is no restriction on the power of the city council to change the grade at any time, and that the petitioners, when they ask that the street be graded, do so with a knowledge that the council has the right to make such changes in the grade already established as they deem proper. On the other hand, it is urged that the petitioners can only be required to pay for the very improvement for which they have asked; that, while the power of the council to change the grade is conceded, the petitioners are only bound by their petition, and that that is to to be construed as referring to a grading in accordance with the ordinance then in force. As the petition in this case merely asks that the street be graded at the expense of the property owners, we are inclined to the opinion that the city council had the power, before taking any steps toward a compliance with the petition, to change the grade if they deemed it wise to do so. The record before us, however, presents a stronger objection to the validity of the special assessments. Section 69 of the act to incorporate cities of the second class is as follows:

“ Sec. 69. 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.”

Ifc appears from the findings of the court that the only-estimate made by the city engineer was made before the change of grade. Can this be held a compliance with the law? If so, plans and estimates for one thing may be made, and a contract let thereunder for another and different thing. The fact that this was merely a contract for. earthwork at a certain price per yard, coupled with the further fact, admitted in the case, that the contract was let at a less price than the estimate, might seem at first to render the change immaterial;' but the trial court has found that the change was material, and that the value of the work to the property owners was materially affected by the change of grade. It might well happen, also, that the price of 22.8 cents per yard for earthwork, in accordance with the grade last established, would be much more profitable to the contractor than work in accordance with the first ordinance at the same price, owing to a change in the character of the earth to be moved, the depth of cuts, and the height of fills.

It appears in this case that the contract was actually let before the ordinance changing the grade took effect, but that the work was completed in accordance with the ordinance last passed. We have then a case in which plans, specifications, estimate and contract all called for a grading in accordance with the ordinance first passed, while the taxes attempted to be collected are to pay for work done in accordance with the last ordinance, materially different from that before contemplated. The ordinance providing for the work was also passed before that providing for the change of grade, and no ordinance was ever passed providing for the grading of the street as it was in fact graded. The tendency of the decisions in this court has been, and we think should be, toward a strict construction of the powers of municipal officers to levy special assessments. (Newman v. City of Emporia, 32 Kas. 456; Barron v. Krebs, 41 id. 338; Sloan v. Beebe, 24 id. 343; Hentig v. Gilmore, 33 id. 242) Section 32 of the statute governing cities of the second class provides for bringing streets to grade at the cost of the city; and the cost of grading a street, it would seem, in the absence of any petition by the property owners, would be chargeable to all the taxable property of the city. The trial court having found that there was a substantial departure by the council from the original plan of the work, we are not at liberty to overlook the changes and say that they are unimportant. The judgment must be affirmed.

All the Justices concurring.