48 Kan. 138 | Kan. | 1892
Opinion by
This was an action on a certain warrant of the city of Atchison issued to Thomas M. Hacket, or bearer, and sold and transferred by said Hacket to the plaintiff below, Jacob Leu. Said warrant was issued to Hacket in part payment for work done by him in curbing and guttering Eourth street from Park street to Q, street, in the city of Atchison. The petition set out the issuing of the warrant to Hacket, the assignment thereof by Hacket to the plaintiff, the levy of the assessment upon the property, its extension upon the tax-roll of Atchison county, its payment to the treasurer of said county April 5, 1884, and the presentation of said warrant by Leu to the treasurer of the city of Atchison for payment August 17, 1886, and his refusal to pay. The city filed a motion asking the court to require the plaintiff to make his petition more definite and certain. This motion was overruled. An answer was then filed setting up the statute of limitations as a bar, and also alleging that no part of the money said to have been collected by the county treasurer as-a special assessment for the work done by Hacket had ever been paid over by the county to the city treasurer. Reply was filed, denying new matter in the answer. When the case came
There is really but one question in this case. It was raised in divers ways, but it is the same question after all, whether raised by the motion to the petition, objection to the evidence under the petition, or demurrer to the evidence of the plaintiff on the trial. The question is, was the city liable in this case, without a showing on the part of the plaintiff below that the money paid to the county treasurer on the special assessment for the work done by Hacket, and for which the warrant was issued to him, was ever turned over by the county treasurer ■to the city? It is admitted that if the money collected on such assessment reached the city treasury, the city is liable, and that the plea of the statute of limitations is eliminated from the case. The admissions and evidence show that Hacket guttered and curbed Fourth street from Park to Q, street, in the city of Atchison; that the warrant sued on in this case was regularly issued to him as part payment therefor; that he transferred the same to the plaintiff below, Jacob Leu; that an assessment was made to pay for said work upon the property liable therefor, which assessment was paid to the county treasurer April ■5,1884; that on several different occasions Leu called on the said treasurer with his warrant to get the money thereon, and payment to him was refused. He then presnted his warrant fo the city treasurer and demanded payment, which was also refused.
We think these facts render the city liable. The city had the power to get the money from the county treasurer. It, in Ml likelihood, could have got the money by asking for it. If not, it could certainly have got it by proper proceedings at law. Leu could not get the money out of the county treasury.
“The lot-owners are never directly or primarily liable to the contractor for grading done by him. They are liable to the city only, and the city is primarily liable to the contractor. When the city fails to provide any means for collecting the value of the grading from the lot-owners and paying the same to the contractor, it leaves the contractor without any possible means of ever obtaining compensation for his services, except by suing the city. ' The city is liable to him; and the only way by which the city can relieve itself from such liability to the contractor is by levying a legal tax.”
We think the logic of this case is, that the city shall be primarily liable to the contractor, and that it shall reimburse itself by levying and collecting a tax for the work from the property liable therefor. This case not only requires the city to collect the tax, but to pay it to the contractor. The con
“The provision of the statute requiring the assessment to be made against the abutting property relates to the ultimate liability therefor, for the purpose of raising a fund to reimburse said city for the amount paid for such improvements, and is a question entirely between the city and the lot-owner, and with which the contractor or his assigns have nothing to do, and in which he has no right or interest; that the city is primarily liable for the making of said improvements, {City of Leavenworth v. Mills, 6 Kas. 298,) and, having executed its contract to pay at a specified time, is bound to pay at such time without regard to the question of the collection of the taxes assessed for the purpose of meeting such demand.”
So in this case, we think the city is primarily liable, and must pay, whether or not it has recovered the money paid over to the county treasurer to reimburse said city for its payment on the warrant for said work. We do not think the case of Casey v. City of Leavenworth, 17 Kas. 189, cited by plaintiff in error, is authority in this case. In that case the contractors agreed to look to a special levy for their pay. That case is decided upon the special circumstances of that case, and is distinguished from the case of City of Leavenworth v. Mills, 6 Kas. 288. In this case it is not certain' that the city had not received the money in question from the county treasurer. The city attempted to show that it had never received it from the county, but from the evidence on that subject, showing the method of doing business between the city treasurer and the county treasurer, we do not see how the city treasurer can tell whether he ever received the particular fund collected to pay the warrant sued on or not. He received from the county treasurer large sums of money after the fund arising from the assessment to pay for the work represented in part by the warrant sued on was paid into the county
By the Court: It is so ordered.