Halpin v. Campbell

• Decision Date: 30 April 1880
• Citation: 71 Mo. 493
• Parties: HALPIN v. CAMPBELL, Appellant.
• Court: Missouri Supreme Court

71 Mo. 493

HALPIN

v.CAMPBELL, Appellant.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

Gage & Ladd for appellant.

F. M. Black and Tichenor & Warner for respondent.

HENRY, J.

This was a suit upon two tax bills for grading Fifth street from Charlotte street to the eastern limits of the City of Kansas. By an ordinance of the city the grading was authorized, and the contract was made and the work done in pursuance of the ordinance. A section or part of the street upon which defendant's property fronted and against which this assessment was made, had previously been graded under an ordinance of the city, and defendant's property in question was assessed to pay, and paid its due proportion of the expense of that work, while the balance of the property on that street, not fronting on the section then graded, was not required by the ordinance to, nor did it pay any portion on such expense. By the ordinance under which the grading was done, which is the foundation of this suit, not only the property fronting on Fifth street from Charlotte street to the eastern limits of the city, was charged with the expense of grading that part of the street, but the property which had already been taxed under the ordinance of 1870 for grading Fifth street from the east line of the alley between Grand avenue and Oak street, to the east line of Troost avenue, including defendant's property in question, was also required to bear its proportion of the expense.

The power to grade a part of the street, and for that purpose to make the property fronting that part of the street alone bear the expense of the work is conceded. Garrett v. The City of St. Louis, 25 Mo. 505; Inhabitants of Palmyra v. Morton, 25 Mo. 595; City of St. Joseph v. Anthony, 30 Mo. 537. But to exempt the property adjoining the balance of the street from paying any part of that cost, and when the balance is graded require the property adjoining that portion which has already been graded at its exclusive expense, to bear a proportion of the expense of grading such balance, is so inequitable and unjust, that the power of the city to require it would have to be so clearly and expressly given as to be beyond a doubt before it could be conceded, even if then it could be upheld. It would be to make a portion of the citizens bear the whole burthen of improving the street in front of their property and then take their money to improve the street in...