42 Kan. 243 | Kan. | 1889
Opinion by
The one question to be determined is, is the plaintiff barred by the statute limiting the time in which to bring his action ? The statute under which this bar is claimed is as follows:
“No suit to set aside the special assessments, or to enjoin the making of the same, shall be brought, nor any defense to the validity thereof be allowed, after the expiration of thirty days from the time the amount due on each lot or piece of ground liable for such assessment is ascertained.” (Laws of 1887, oh. 101, §1.)
It is shown that the cost of the improvement was ascertained and assessed against the abutting property upon the street on the 27th day of August, 1887, and this action was brought in January, 1889. The defense to this claim is, that the city council had no power or jurisdiction to make the improvement and to assess the same upon abutting property — first, because the petition presented requesting such grading was insufficient to give the city jurisdiction; second, that the city never legally ascertained the cost of the improvement and legally assessed
“That in case a petition of a majority of the resident property-owners of a majority of the tront feet on any street, or part thereof, shall petition the mayor and council to grade any street, and to grade and pave the intersections thereof at the cost of the owners of the lands fronting upon the street described in the petition, and if such petition shall be ordered spread upon the journal of the council by a majority of the council elect, the mayor and council shall thereafter have power to assess the cost of such improvement against the lots and parcels of land abutting on such street so improved abutting property.” (Laws of 1887, ch. 99, § 4.)
Was the petition sufficient? It is claimed that because the petition does not ask for grading and paving the intersections of the street, that therefore the city had no authority to act. Or, in other words, the petition, to be valid, must contain a request for the entire improvement named. This calls for a construction of §4. What the legislature meant the petition to contain, is difficult to ascertain. The object was to permit property-owners to improve streets without expense to the city, and the kind of improvement authorized was to grade a street or part of a street, and to grade and pave the intersections. To say that if it was necessary to grade and open a street, to accomplish this there must be coupled therewith the paving of the intersections, would be an anomaly in the history of city improvements. To have a street graded and the intersections paved, without paving the remainder of the street, would be inconsistent, and such a construction as would require it ought not to be given if it can be fairly avoided. The grading of a street would include the grading of the intersections.
The petition being valid, and duly spread upon the journal of the city, gave jurisdiction to make the improvement, to ascertain the cost, and to assess the same to the abutting property. The means and manner of doing the work, the ascertainment of the cost, the apportionment between abutting property-owners, even if irregularly made and done, do not
Plaintiff however insists that the statute limiting the time to thirty days within which to bring the action is unconstitutional, for the reason that the time is too short. This, if true, might be a good reason to change the law. The fixing of a time when a cause of action will be barred, or in which actions may be brought, is in the discretion of the legislature, and will rarely be disturbed by courts. (Price v. Hopkin, 13 Mich. 318; Jackson v. Lamphire, 3 Pet. 280; Swickard v. Bailey, 3 Kas. 512; Plum v. Fond du Lac, 51 Wis. 393; Smith v. Cleveland, 17 Wis. 583; Wright v. Tacoma, 19 Pac. Rep. 42; Cooley, Const. Lim., p. 366, and note.) We think thirty days’ limitation not such a restriction upon the rights of litigants as calls for interference on the part of courts.
It is therefore recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.