Noel v. Summit
| Decision Date | 27 May 1912 |
| Parties | JAMES W. NOEL et al., Appellants, v. LEES SUMMIT, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Paxton & Rose for appellants.
(1) There is nothing in the claim that plaintiffs waived their rights by standing by and seeing the work done jurisdictional matters, such as the preliminary resolution and an ordinance describing the work, cannot be waived. Keane v. Klansman, 21 Mo.App. 485; Bank v Western, 68 Mo.App. 137; Parkinson v. Houlan, 182 Mo. 189. (2) The street and alley committee had no authority to do anything but fill holes made here and there in the street. It had no power to make a repaving under the guise of a repair. Clay v. Mexico, 92 Mo.App. 611. (3) The new work, although put down on the remains of the old macadam was macadamizing and repaving not a mere repair. Jones v. Plumber, 137 Mo.App. 337. (4) The new paving put down exceeded the thickness the remains of the old pavement on which it was placed, and therefore constituted a repaving, not a repair. Rackliffe v. Duncan, 130 Mo.App. 695.
E. S Bennett, T. J. Haekler and Pence & Sanford for respondent.
(1) The street and alley committee did not need an ordinance from the board of aldermen to confer authority, and if they did, the orinance of April 6, 1911, was sufficient. Sec. 9411 R. S. 1909; Fayette v. Rich, 122 Mo.App. 145. (2) The work was repair work. O'Meary v. Green, 25 Mo.App. 198. (3) The work was not reconstruction, but repair. Ritterskamp v. Stifel, 59 Mo.App. 510; Farrell v. Ramelkank, 64 Mo.App. 425; Perkinson v. Schnaake, 108 Mo.App. 255; Rackliffe v. Duncan, 130 Mo.App. 695; Jones v. Plummer, 137 Mo.App. 337. (4) The work being repair work, the taxbills would have been void, had the city proceeded by resolution, ordinance and letting of contract. Deming v. Const. Co., 154 Mo.App. 540. (5) The Legislature having conferred the authority on this committee, they were in the exercise thereof beyond the control of the court. Marionville v. Henson, 65 Mo.App. 397; Skinker v. Heman, 64 Mo.App. 441, 148 Mo. 349.
Plaintiff seeks to cancel certain taxbills issued for repairing a street in Lees Summit, a town of the fourth class. The trial court refused his prayer and found for the defendants.
It appears that running through the town from north to south there is a street commonly called Douglas street, though in fact about one-fourth of its length is made up of Hearne avenue. The full length of the two, running as they do from the north to the south limits of the town, is near a mile and an eighth. These streets were macadamized in 1896, the Hearne avenue part twenty feet wide and the Douglas part thirty-two feet wide, both twelve inches deep. The street, thus paved, composed a part of a much traveled highway in going to and returning from places beyond, that attracted much of the public of the populous county of Jackson, in which Lees Summit is situated.
About fifteen years after this paving was completed it became so worn that the city council thought it proper to repair it and passed the following ordinance for that purpose: "That the authority is hereby granted unto the street and alley committee of the board of aldermen of said city to proceed to repair the macadam along and upon Douglas street in said city, from the northern limits of said city to the southern limits of said city, proceeding therein as provided by section 9411, Revised Statutes of Missouri 1909."
The provision of section 9411, referred to in this ordinance, is as follows:
Where a street is to be paved in a town of the class to which Lees Summit belongs, the statute requires that a resolution be first adopted and published by the city council declaring the paving necessary, so that objections, if any, may be made and heard. Then an ordinance is passed providing certain specifications for material and the manner of the work and the time in which it is to be done. Then a public letting is had and a contract let to the best bidder, etc. But in the matter of repair of a street, these formalities and safeguards to the interests of the propertyowner are dispensed with and there seems to be delegated to "the proper officer or committee on improvements," in this case the street and alley committee, authority, without formality or notice or other protection to the property-holder, of his, or its own motion, to make a contract and cause repairs to be made and to report the cost to the board of aldermen for assessment, the board issuing taxbills to the contractor. It will be noticed that this statute in connection with "repair" uses the word "reconstruct," and plaintiff has said that used in such connection it is synonymous with "repair." Whether so or not we need not say, since this proceeding from beginning to end is for the "repair" of the street. So the question for the court is, can the improvement in question be properly or fairly designated a repair of the street? The contest, as appeared from statements in argument, determines whether the abutting property or the town at large must pay for the work.
The evidence shows that in the central part of the street the macadam had been worn and wasted away by long usage, to within from two to six inches of the ground; and...
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