286 P. 218 | Kan. | 1930
The opinion of the court was delivered by
I. J. Shaffer brought this action to enjoin the city of Haddam and certain officers against levying and collecting a special assessment on real estate of appellee in Haddam City, sought to be charged with a special tax for the construction of a sidewalk. The trial court held that the plaintiff was entitled to an injunction and adjudged that the injunction be made permanent. Defendants appeal.
The levy of the special tax must be regarded as invalid since
■ “Now all things necessary to be done were done, and done at the proper time, except that they were not done by ordinance, but .were done only by resolution. . . . Now we think the same ought to have been done by ordinance. Such undoubtedly would have been regular and formal under the laws of Kansas, and we think such laws require it. (Citing statutes.) It is true and the statutes nowhere in express terms require that the same must be done by ordinance; but we think they require it by the strongest inference and by necessary and unavoidable implication.” (p. 461.)
See, also, Barron v. Krebs, 41 Kan. 338, 21 Pac. 235; Dargatz v. Pauley, 91 Kan. 698, 139 Pac. 419.
The city had passed an ordinance in 1924 providing that all sidewalks hereafter constructed or rebuilt should be of vitrified brick, but the sidewalk in question was not built under that ordinance as it was constructed of cement. Defendant does not rely on this ordinance for authority, and if it did the building of a cement walk would not have been within the authority of the ordinance which provided that all sidewalks should be built of vitrified brick. (Sloan v. Beebe, supra.)
There is a contention that the injunction should be denied because of the laches or delay of plaintiff in not bringing his action until after the sidewalk was built. The city was acting with con
The judgment is affirmed.