Doran v. Barnes

• Decision Date: 10 November 1894
• Citation: 38 P. 300,54 Kan. 238
• Parties: JOHN A. DORAN, as Treasurer of Sedgwick County, et al., v. OSCAR D. BARNES
• Court: Kansas Supreme Court

38 P. 300

54 Kan. 238

JOHN A. DORAN, as Treasurer of Sedgwick County, et al., v. OSCAR D. BARNES

Supreme Court of Kansas

November 10, 1894

Error from Sedgwick District Court.

WICHITA being a city of the first class under the laws of the state in force in the year 1893, paved a portion of Douglas avenue one of the principal streets in that city, at the cost of $ 78,000, by making a special assessment against the premises within the paving district. Oscar D. Barnes was a lot owner on the avenue. On the 6th day of March, 1893, a petition was presented to the mayor and council asking that a portion of Douglas avenue be paved. On the 13th day of March, 1893, the petition was by resolution ordered spread upon the journal the council having found that the petition was signed by the owners of a majority of the front feet abutting on the avenue. At the same time, the mayor and council of the city passed a resolution declaring it necessary to pave the avenue, within the points mentioned, and the resolution was duly published in the Wichita Daily Eagle, the official paper of the city, for six consecutive days thereafter, the first publication being made March 18, 1893. On the 17th day of April, 1893, the engineer's sworn estimates for paving the avenue were received and adopted by the council. On May 1, 1893, the city clerk was instructed to advertise for proposals for paving the avenue, and did advertise for bids for the paving. On May 8, 1893, the bids were opened and the contract awarded to the Barber Asphalt Company, the lowest bidder. On the 9th day of June, 1893, appraisers were appointed by ordinance to appraise the real estate liable for special assessments for paving the avenue. On July 10 the appraisers submitted their report, and on July 14 the mayor and council, as a board of equalization, confirmed and adopted the report. On July 20, 1893, the city clerk of the city gave the various property owners who owned property liable for special assessment 30 days' notice in writing of the amount of such special assessment levied against their respective properties. On August 14, 1893, an ordinance was passed apportioning and making a special assessment for the paving improvements, and fixing the number of installments in which the said assessments should be made. After the expiration of 30 days from the time of the giving of this notice of the amount of the special assessments levied against the respective property owners on said avenue, the city issued its improvement bonds in the sum of $ 78,000 to pay for the paving, and the bonds were delivered long prior to the commencement of this action. On the 16th day of December, 1893, Oscar D. Barnes commenced this action to enjoin the collection of the tax levied upon a portion of the property abutting upon the avenue to pay for the improvements. The injunction was granted by the district court. John A. Doran, as county treasurer of Sedgwick county and others, bring this case here for review.

Judgment reversed and cause remanded.

A. J. Myatt, W. E. Stanley, and Hallowell & Hallowell, for plaintiffs in error.

T. B. Wall, and J. M. Humphrey, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

It appears from the agreed statement of facts that Oscar D. Barnes, now complaining of the special assessment levied upon his property abutting on Douglas avenue, in Wichita, lived in that city during the time of all the proceedings relating to the paving; that he signed the names of M. P. Barnes & Son to the petition for 275 feet; that 275 feet was a greater amount of abutting front feet than he had authority to represent; that he was doing business upon the street proposed to be paved; that he took the official paper of the city; that all the proceedings of the mayor and council concerning the paving were published therein; that he knew of the paving of the street; that he knew a special assessment would be made upon the abutting property to pay for the improvement; that while the question of paving of the street was being considered by the mayor and city council, he waited upon members of the council, and urged them to vote for asphalt paving; that two of the members waited upon by him changed their votes and voted for asphalt; and that the paving enhanced the value of his property. It also appears that he did not know of the defects in the petition presented to the mayor and council until a few days before the commencement of this action.

On the part of Barnes, it is insisted, as it was shown upon the trial that the petition was not signed by the owners of a majority of the front feet abutting on Douglas avenue, that the mayor and council acted without jurisdiction. (Gen. Stat. of 1889, P 558; Laws of 1891, ch. 73, § 6.) Section 6 reads:

"Provided, That no resolution to pave, macadamize or grade, repave, remacadamize or regrade any street, lane or alley, shall be valid unless a petition, asking for such improvement has been ordered spread upon the journal, which petition must be signed by the owners of a...