Wahlgreen v. City of Kansas City

• Citation: 42 Kan. 243,21 P. 1068
• Parties: C. WAHLGREN v. THE CITY OF KANSAS CITY et al
• Decision Date: 05 July 1889
• Court: United States State Supreme Court of Kansas

21 P. 1068

42 Kan. 243

C. WAHLGREN v. THE CITY OF KANSAS CITY et al

Supreme Court of Kansas

July 5, 1889

Error from Wyandotte District Court.

ACTION brought by Wahlgren, to enjoin the collection of a special assessment levied to pay for the grading of a street. On February 23, 1889, the district court denied the plaintiff's application for a preliminary injunction, and to review this order he brings his petition in error. The facts are substantially as follows: A majority of the property-owners on Seventh street, between certain streets named, in Kansas City, Kansas, petitioned the city government to grade said street. The petition is as follows:

"To the Honorable Mayor and Councilmen of the City of Kansas City--GENTLEMEN: We, the undersigned residents of Kansas City, Kansas, and owners of real estate described opposite our names, abutting upon Seventh street between south line of Minnesota avenue south to its intersection of Fifth street in the old town of Armstrong, petition your honorable body to grade the above-described street at the cost of the owners fronting on said street," etc.

This petition was duly presented to the city council, and by the proper vote of the council was spread upon the journal. Afterward, estimates were made for the improvement or grading of a portion of said street, including the property of the plaintiff; the contract was let, the street graded, the value of abutting property duly appraised, the time fixed for the equalization of said appraisement and due notice thereof given, the cost apportioned to the various lot-owners. Plaintiff failing to pay his assessment, an ordinance was duly passed authorizing the issue of bonds for such improvement, in accordance with the provisions of § 1 of chapter 101, Laws of 1887. An assessment was duly made to pay the bonds, and interest due thereon; and to enjoin the collection of this interest and tax this action was brought.

Judgment affirmed.

True & Littick, for plaintiff in error.

Hutchings & Keplinger, for defendants in error.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.:

The one question to be determined is, is the plaintiff barred by the statute limiting the time in which to bring his action? The statute under which this bar is claimed is as follows:

"No suit to set aside the special assessments, or to enjoin the making of the same, shall be brought, nor any defense to the validity thereof be allowed, after the expiration of thirty days from the time the amount due on each lot or piece of ground liable for such assessment is ascertained." (Laws of 1887, ch. 101, § 1.)

It is shown that the cost of the improvement was ascertained and assessed against the abutting property upon the street on the 27th day of August, 1887, and this action was brought in January, 1889. The defense to this claim is, that the city council had no power or jurisdiction to make the improvement and to assess the same upon abutting property--first, because the petition presented requesting such grading was insufficient to give the city jurisdiction; second, that the city never legally ascertained the cost of the improvement and legally assessed the same upon the abutting property. The statute under which this petition was presented is as follows:

"That in case a petition of a majority of the resident property-owners of a majority of the front feet on any street, or part thereof, shall petition the mayor and council to grade any street, and to grade and pave the intersections...