Bailey v. Henrion

• Decision Date: 08 January 1921
• Docket Number: 22,914
• Citation: 194 P. 928,108 Kan. 282
• Parties: CELESTIA A. BAILEY and W. B. BAILEY, Appellants, v. W. S. HENRION et al., Appellees
• Court: Kansas Supreme Court

194 P. 928

108 Kan. 282

CELESTIA A. BAILEY and W. B. BAILEY, Appellants, v. W. S. HENRION et al., Appellees

No. 22,914

Supreme Court of Kansas

January 8, 1921

Decided January, 1921

Appeal from Sedgwick district court, division No. 1; RICHARD E BIRD, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CITIES--Authority to Pave Portion of Certain Streets Regardless of Protests. Under the statute (Gen. Stat. 1915, § 1236) a city of the first class has power, upon its own initiative and regardless of the attitude of resident taxpayers affected thereby, to pave an intervening portion of a city street to connect portions already paved, if such unpaved portion does not exceed two ordinary city blocks in extent.

2. PAVING STREETS--Engineering Expenses a Legitimate Charge. A reasonable charge for engineering expenses, which includes surveying, drafting blueprints, supervising the work and inspecting materials used in making a street pavement, constitutes a proper item to be included in computing and assessing the cost of the improvement.

3. RESOLUTIONS REQUIRING PUBLICATION--Should Be Published in Newspaper of General Circulation. Where a resolution adopted by a city government is required to be published, it should be published in a newspaper of general circulation, and its publication in an obscure sheet of 155 subscribers, in a city of over 70,000 inhabitants, is not a compliance in good faith with such requirement.

4. PAVING STREETS--Assessments--Levy of Taxes--No Grounds for Injunction. Objections to the assessment and levy of taxes to pay for the construction of a street pavement considered, and no ground justifying interference by a court of equity discerned.

W. B. Bailey, of Wichita, for the appellants.

Robert C. Foulston, James A. Conly, George Siefkin, all of Wichita, for the appellees.

OPINION

DAWSON, J.:

The plaintiffs brought this action to enjoin the city of Wichita and certain public officials of Sedgwick county from levying a special tax on certain town lots of plaintiffs' to pay for paving two blocks of a city street. Plaintiffs also prayed for other equitable relief.

The paving in question was upon two blocks of Lorraine avenue in the city of Wichita, a street extending north and south and crossed by Central avenue and by Third street, which are parallel to each other, running east and west, and which are not over two blocks apart. At the crossing of Central and Lorraine, and northward therefrom, the latter street is paved. At the crossing of Third street and Lorraine, and thereabout, Lorraine has been improved in a fashion which answers the purpose of both a paved roadway and a paved storm-water sewer. This unusual improvement is constructed like a pavement, forty feet wide, with side walls, but depressed or concave in the center instead of being crowned or convex in the usual manner of a pavement. Part of the city engineer's testimony reads:

"Q. You say pavement; you mean the construction of the sewer? A. The physical construction of the sewer, which included the pavement on Third street, yes, sir. . . .

"Q. This Third street [at intersection with Lorraine] that has been spoken of acts as a storm-water sewer at times? A. Yes, sir.

"Q. Is it also a pavement? A. Yes, sir.

"Q. And it is constructed as a pavement so far as the intersection of Lorraine and Third Street is concerned? A. Yes, sir; so far as traffic is concerned, it serves the purpose of a pavement."

The paving of Lorraine avenue between Third and Central, not exceeding two blocks and in fact some twenty-five feet less than that distance, was undertaken by the city authorities pursuant to section 1236 of the General Statutes of 1915, viz.:

"And in all cases when two or more portions of any street or alley have been graded, guttered, curbed, paved, or macadamized, and intervening portions of said street or alley have not been graded, guttered, curbed, paved, or macadamized, the mayor and council may by resolution cause the intervening portion to be graded, guttered, curbed, paved or macadamized not to exceed two blocks, and levy special assessments to pay...