45 Kan. 296 | Kan. | 1891
The opinion of the court was delivered by
The decision and decree of the court holding the special taxes to be illegal, and enjoining the making of any provision for their payment, is placed upon the failure of the city and its officers to make an assessment upon the property in blocks 14 and 17 for a proportion of the cost of the sewer. The other conclusions are against the defendants in error, and although they excepted to the rulings adverse to them, and asked for a new trial, they have presented no petition or cross-petition in error, asking for a review of such adverse rulings, as they might have done.
The property in blocks 14 and 17 which was omitted from the assessment is contiguous to another sewer, which, with laterals now built or that may be built, will afford adequate sewer facilities for the occupants of these blocks. The same may be said of block 18, which is in asimilar situation. The property omitted from the assessment in these blocks was not accommodated or benefited by the construction of the new sewer, and such taxes can only be imposed in proportion to the special benefits received. A part of lots 1 and 2, in block
It appears that in 1884 a six-foot brick sewer was built from White Clay creek and Main street, northward, along the center of Fourth street, for a distance of a block and a half, and to a point twenty-nine and one-half feet south of the alley running through blocks 13 and 14, with wings extending to the ends of the alleys in said blocks, and on either side, and a lateral sewer was afterward constructed through the alley in block 14, which emptied into the brick sewer. This improvement was made at the expense of all the taxpayers of the city. The sewer in question, which was constructed' in 1889, connected with the brick sewer, and extended from the connection, northward, along the center of Fourth avenue, near to Mound street, with laterals through the alleys of the blocks on either side, thus draining the territory from Third to Fifth streets.
It is claimed that the new sewer is simply an extension of the one built in 1884, and that the entire territory between Third and Fifth streets, from White Clay creek northward to Mound street, constitutes a sewer district, and that the special taxes should be apportioned to the entire property within that district. The district court appears to have adopted the view that this territory should be treated as a distinct district, and that the exemption of the property in blocks 14 and 17 from contributing toward the cost of the sewer rendered the assessment that was made illegal.
The further fact referred to by counsel, that a short section of the sewer was formerly built at the expense of the city, is
There are no other objections which we deem it necessary to notice. From an examination of the record, we are satisfied that the tax proceedings are in substantial compliance with law and should be sustained, and that the injunction prayed for should be denied.