61 P. 746 | Kan. | 1900
Lead Opinion
The opinion of the court was delivered by
There is nothing in the record before us which distinguishes this case from that of Kansas City v. Kimball, 60 Kan. 224, 56 Pac. 78. So far as the petition to the mayor and council is concerned, it shows a conformity to the provisions of section 171 of chapter 32, General Statutes of 1897. There is a certificate by the city engineer, to which officer we presume the petition was submitted, stating that the same is signed by the owners of a majority of the front feet owned by residents abutting on Ann avenue between Sixth and Tenth streets, and a further certificate by the city attorney showing that the petition is signed by the parties having a legal right to sign for the property set opposite their names as shown by abstracts furnished by the city abstracters. These certificates, with the petition, were before the council when the prayer of the property owners was granted. The certificate of the engineer shows the total number of front feet owned by resident property owners to be 3520 ; total number signing, 1982.50 ; majority, 445. There is error in this calculation, in that the majority should be 222.50.
In Kansas City v. Kimball, supra, Mr. Chief Justice Doster, speaking for the court, said:
“The defendants in error not having commenced their action within the statutory period, the remaining questions are easy of disposal. The law did not require the petition to the mayor and council for the making of the improvements in question to show upon its face that it was signed by the resident owners of a majority of the front feet to be paved. (City of Argentine v. Simmons, 54 Kan. 700, 39 Pac. 181.) The fact, if it were such, that the resident owners of a majority of the front feet did not'in reality sign the petition did not appear upon it or upon other proceedings. Upon the face of the petition and other proceedings nonconformity to the law did not appear. In such cases the validity of the assessment cannot be challenged beyond the limited period allowed by the statute for so doing. (Doran v. Barnes, 54 Kan. 238, 38 Pac. 300.)”
It is true that if the 400 feet frontage of Huron Place be deducted the petition lacks 177.50 feet of
A city can take and hold a fee-simple title to real estate when the same is necessary for municipal purposes, and the petition to the council asking for this improvement does not disclose that the property signed for by the mayor was not so held. In Doran v. Barnes, 54 Kan. 238, 241, 38 Pac. 300, 301, which was a case involving the levy of a paving tax in 1he city of Wichita and the validity of a petition therefor, the court said:
“The mayor and council examined the petition. Upon the hearing thereof, they found that it was signed by the owners of a majority of the abutting front feet, even after omitting 100 feet therefrom. With this omission, there was 3398 feet represented. They ordered the petition spread upon the journal. At the time the amount due on each lot or piece of ground liable for the assessment was ascertained, all the proceedings relating to the paving and assessment were apparently regular and valid. We are therefore of the opinion that paragraph 590 of General Statutes*203 of 1889 is applicable, and that this action ought to have been commenced in the court below within thirty days from the time the amount of the assessment was ascertained.”
That some of the petitioners were non-residents is not available to the plaintiffs below after the statute of limitations has run, such fact not appearing on the face of the petition to the council.
The estimate of the engineer, in our judgment, was sufficiently detailed to meet the requirements of the statute. It contained the number of square yards, the cost per square yard, and the total cost. The objection urged against the estimate is that there is no specification whether one or more layers of brick are to be used, and that there is no apportionment as to how much is chargeable to the abutting property or to the city at large. In the case of Olsson v. City of Topeka, 42 Kan. 709, 21 Pac. 219, the city proposed to pave a street with stone and asphalt, and the estimate made by the engineer of the cost of the improvements was as follows: “Paving 2633 square yards, at $2.85 per square yard, $7504.05.” This was held to be in sufficient detail, and it corresponds substantially with the estimate in the case at bar. The statute does not require the estimate to state the amount chargeable to the city at large.
Furthermore, we think that section 212 of chapter 32, General Statutes of 1897 (Gen. Stat. 1899, §749), providing that no suit to set aside special assessments or enjoin the making of the same shall be brought after the expiration of thirty days from the time the amount due on each lot liable for such assessment is ascertained, does not permit an inquiry into the question whether the estimate in this case is sufficiently detailed, after that period. The suit to enjoin the col
The judgment of the court below will be reversed and a new trial granted.
Dissenting Opinion
(dissenting) : I dissent from the first paragraph of the foregoing syllabus and the corresponding portion of the opinion. I adhere to the decision made in Kansas City v. Kimball, 60 Kan. 224, 66 Pac. 78, but I deny the applicability of that case to the facts of this one. The face of the petition on
Now, suppose the petition in this case had been signed by natural persons only, and that the city had joined with the others in a remonstrance against the making of the improvement, as upon the theory of its being a resident owner it had the right to do. We would have been treated to the equally anomalous spectacle of a city formally remonstrating to itself against the proposed action by itself, and gravely considering its own remonstrance along with that of others in order to determine the action which it should take.
The fact is the statute contemplates the making of street improvements upon the petition, or the refusal to make them upon the remonstrance, of those who are the subjects of municipal authority — those whose property may be taken in invitum to pay for the improvement, if made, or may go unburdened if not made ; and it does not contemplate that the sovereignty which itself determines the necessity for the making of the improvement and which levies and collects the taxes to pay for it, if made ; may join with private individuals in setting in motion that machinery of the law which eventuates in the action taken.
The precise question here involved was determined in accordance with the views above expressed in City of Atlanta v. Smith et al., 99 Ga. 462, 27 S. E. 696, and I think that the decision in that case is a sound precedent to follow.