Keys v. Neodesha

• Decision Date: 05 April 1902
• Docket Number: 11,936
• Citation: 68 P. 625,64 Kan. 681
• Parties: J. B. KEYS et al. v. THE CITY OF NEODESHA et al
• Court: Kansas Supreme Court

68 P. 625

64 Kan. 681

J. B. KEYS et al. v. THE CITY OF NEODESHA et al

No. 11,936

Supreme Court of Kansas

April 5, 1902

Decided January, 1902.

Error from Wilson district court; L. STILLWELL, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TAXATION -- Special Assessment. A special assessment on abutting lots, according to their front feet, to pay for grading the street, preparatory to putting down a sidewalk is illegal. Such expense should be provided for by a levy on all the taxable real estate within the corporation.

2. TAXATION -- Not Estopped to Maintain Injunction. The owner of such lots is not estopped to maintain injunction to restrain the sale under an illegal special assessment because he did not commence his action before the improvements were made, when it is alleged and admitted that, prior to the commencement of the work, he served written notice on the mayor, street commissioner and contractors not to build such walk and that he would not be responsible therefor.

J. W. Sutherland, for plaintiffs in error.

E. D. Mikesell, for defendants in error.

GREENE J. DOSTER, C. J., SMITH, ELLIS, JJ., concurring.

OPINION

GREENE, J.:

The plaintiffs in error filed their petition in the district court of Wilson county for an injunction to restrain the defendants in error, the city of Neodesha, P. G. Pinney, county treasurer, and C. W. Isham, county clerk, of Wilson county, from levying a special assessment against certain lots in the city of Neodesha, and from assigning certain tax-sale certificates which had been issued to the county on tax sales of said lots, and from executing tax deeds to said real estate. A temporary restraining order was issued. Thereafter the defendants filed a demurrer to the petition alleging all the statutory grounds except the third. Upon a hearing this demurrer was sustained, and, the plaintiffs electing to stand on their petition, judgment was rendered for the defendants. The only question involved is whether the petition states a cause of action.

The petition alleges the ownership of the property in plaintiffs that the city passed an ordinance establishing the grades of the streets on which such lots are situated, and an ordinance providing for the building of sidewalks thereon, prescribing their width, the material to be used, kind and size of curbing, and directing that all walks should conform to the grade so established. It also alleged that the city did not bring said street to the grade; but that, after passing such ordinances, it let the contract for grading such portion of the streets on which the sidewalks were to be built and for the building of the walk and curbing the streets to Munday & Purnell. A notice was served on plaintiffs informing them that unless they built said walks within fifteen days the city would do so and charge the expense to the property. Immediately thereafter, and before any work was done, the plaintiff served written notice on the mayor, street commissioner, and Munday & Purnell, contractors, not to attempt to build such walks, and that they, the owners of the lots, would not pay for their construction. Copies of these notices are contained in the petition. They also allege that the mayor and council, after having let the contract, taxed the entire cost of grading that portion of the streets occupied by the walks, putting in the curbing and laying the walks against said lots at a price very much in excess of the contract price; that said several items were carried out on the assessment and tax-rolls against the property as one charge, and that it is impossible to separate that portion charged for grading the streets from that portion charged for curbing and putting down the sidewalks. There are numerous other allegations in the petition,...