Parker v. Challiss, 9 Kan. 155

Parker v. Challiss

9 Kan. 155 | Kan. | 1872

The opinion of the court wras delivered by

Brewer, J.:

The main question in this case, that upon which it was decided in the district court is this: Had the-city of Atchison the power to contract in one contract for building sidewalks on different streets, in different parts of the city, and to make assessments therefor on the lots fronting on such sidewalks? The district court held that it had not, but must assess the lots on each street only for the sidewalk built thereon. In this we think the court erred. Atchison is a city of the second class; as such it is given, by § 30, paragraph 2 of the act concerning cities of the second class, (Gen. Stat.r p. 160,) power “to open and improve streets, avenues and alleys, make sidewalks and build bridges, culverts and sewers *161within the city, and for the purpose of paying for the same shall •have the power to make assessments in the following manner, to wit: * * For making and repairing sidewalks, the assessments shall be made on all lots and pieces of ground abutting on the improvement, according to the front foot thereof.” *

1. Power to Uuiid°sidety walks. The power to make sidewalks is here given, absolutely and without limitation. When and upon what streets they shall be made is committed to the discretion of the mayor .and council. Their determination is final. No party can by mandamus compel them to make, none by injunction restrain them from making. This discretion is not limited to a single street. They may sidewalk the whole city at once, and by a single contract. But the right to assess the lots fronting on the imPr°vement to pay for the same is co-extensive with the power to make it. Nothing in terms or by implication restricts the assessment to a single street. True, as urged, a sidewalk on one street may cost more than a sidewalk on another, and if both be united in one contract and one assessment, the owner of a lot on the latter street may have to' pay more than if his street only was sidewalked. But the same is true not only of two streets, but also of two blocks on the same street, or of two lots in the same block. Still there is no injustice in apportioning the entire cost of a sideAvalk upon the several lots fronting it. The value of a sideAvalk depends greatly upon its extent. One in front of a single lot Avith none in front of the adjacent lots is of comparatively little benefit. One object of a sideAvalk, as of grading or macadamizing a street, is to secure easy and convenient means of approach; and Avithin certain limits the farther those easy and convenient means of approach are extended the greater the benefit to the lot. Injustice may be done by uniting in one contract and assessment streets in different parts of the city, not connected by sidewalks, and upon which the cost of construction is different. But almost any power may be abused. Still, that possibility is no argument *162against its existence. In this case the right was reserved to each .lot-owner to make the sidewalk in front of ..his lot, and thus, be relieved from any further liability on account of such sidewalks. This right the defendant in error failed to avail himself of.

2. improvement IigdsTdl’waik3' 0t0‘ II. It is urged that as the street fronting the lots of defendant in error had never been graded no. power to sidewalk existed. The findings of fact showed that this street was a regular street of the city, had long been open to public use, and daily used for public travel, but had not been graded at or near the lots of defendant in error, though fbe ground was of an easy grade and the sidewalk nearly even- with the ground., It does not appear from the findings that the street was in a condition even to require grading. In many of our cities and villages, especially those on the prairies, the natural grade is the best, and every shovelful of dirt that is moved injures rather than improves the street. Can such a street never be sidewalked ? But we do not care to put our decision on this ground. The city is not restricted as to the order in which it shall make improvements on a street. There is in the nature of things no fixed .and absolute order in which improvements are needed. The necessities of business, and the convenience of travel, may require that one street be macadamized first, and that another be sidewalked first. There is need that discretion in this matter be vested somewhere. It is vested in the mayor and council. The fact that one power is named in the charter subsequent to the other does not -prove that one is subordinate to the other, or that one must bo used before the other is resorted to; The power to make sidewalks is named before the power to build bridges, culverts, and sewers. Cannot a city build a sewer under a street until after it has made a sidewalk upon*’ it ?

3‘Ínproíeeltags taxes!leot III. The other objections raised by counsel for defendant in error- relate to irregularities in the proceedings to collect tihe tax- These irregularities, if any existed, (and we express no opinion either way upon those points,) cannot be inquired into in this injunction proceeding. *163Eor, the power to do the work being given by law, and the work being done, equity will not interfere to relieve the lot-owner from the payment of the cost simply on account of irregularities in the proceedings to collect.

This case being here upon special findings of fact, with no motion to set them aside, and no exceptions by defendant in error, the order will be that the judgment of the district court be reversed and the case remanded with instructions to said court to render judgment on the findings in favor of V. W. Parker, treasurei', etc., the defendant below, for costs.

All the Justices concurring.