City of Atchison v. Price

45 Kan. 296

• Court: Supreme Court of Kansas
• Decided: January 15, 1891
• Status: Published

Opinion

The opinion of the court was delivered by

JOHNSTON, J.:

The decision and decree of the court holding the special taxes to be illegal, and enjoining the making of any provision for their payment, is placed upon the failure of the city and its officers to make an assessment upon the property in blocks 14 and 17 for a proportion of the cost of the sewer. The other conclusions are against the defendants in error, and although they excepted to the rulings adverse to them, and asked for a new trial, they have presented no petition or cross-petition in error, asking for a review of such adverse rulings, as they might have done.

The property in blocks 14 and 17 which was omitted from the assessment is contiguous to another sewer, which, with laterals now built or that may be built, will afford adequate sewer facilities for the occupants of these blocks. The same may be said of block 18, which is in asimilar situation. The property omitted from the assessment in these blocks was not accommodated or benefited by the construction of the new sewer, and such taxes can only be imposed in proportion to the special benefits received. A part of lots 1 and 2, in block 14, which could not be reached by the sewer already constructed, and which was so subdivided as to abut on the new sewer, was benefited, and was properly assessed. It is contended, however, that no sewer district was ever created or defined by which the expense of the construction of the sewer could be placed exclusively upon the owners of the territory upon which the assessment' was made by the city council; but that if there was a distinct sewer district which might be held liable for the entire cost of the sewer, that it extended south to White Clay creek, and included blocks 14, 17, and the most of 18, as also the other property within this territory.

It appears that in 1884 a six-foot brick sewer was built from White Clay creek and Main street, northward, along the center of Fourth street, for a distance of a block and a half, and to a point twenty-nine and one-half feet south of the alley running through blocks 13 and 14, with wings extending to the ends of the alleys in said blocks, and on either side, and a lateral sewer was afterward constructed through the alley in block 14, which emptied into the brick sewer. This improvement was made at the expense of all the taxpayers of the city. The sewer in question, which was constructed' in 1889, connected with the brick sewer, and extended from the connection, northward, along the center of Fourth avenue, near to Mound street, with laterals through the alleys of the blocks on either side, thus draining the territory from Third to Fifth streets.

It is claimed that the new sewer is simply an extension of the one built in 1884, and that the entire territory between Third and Fifth streets, from White Clay creek northward to Mound street, constitutes a sewer district, and that the special taxes should be apportioned to the entire property within that district. The district court appears to have adopted the view that this territory should be treated as a distinct district, and that the exemption of the property in blocks 14 and 17 from contributing toward the cost of the sewer rendered the assessment that was made illegal.

2 sewer last oost-lwha^a~ temtory hable,

1. City-con-sewéra-lia-tncte — tax. We think this entire territory is not to be treated as a single district, and that the exemption of the property not assessed in blocks 14, 17 and 18, which is and may be accommodated by the brick sewer built prior to 1889, did not invalidate the assessment that was made. A general system of sewerage for the entire city has been adopted, and the construction of the whole at once may be impracticable and unnecessary. The fact that a sewer constructed in one district or portion of the city connects with or is an extension of another already constructed, does not make the territory drained by both a single and distinct district, nor does it require that all the property within that territory shall be assessed for the sewer last constructed. It is for the city to determine how early and rapidly the system shall be completed, and any section or extension of the system may be built whenever it is deemed necessary and expedient. When a section or extension is made, the territory drained and specially benefited by the construction of an extension or section, however small, may be regarded as a district. A lateral running through an alley of a single block, and connected with another sewer, may be constructed by the city, and the territory specially benefited will alone constitute a district upon which the entire cost of the lateral may be assessed. In this case only the property contiguous to the new sewer and specially bene-gy jj. was assesse(J for jj;S cost, To have apportioned any share of the expense to the omitted property in blocks 14 or 17, would have been palpably unjust and illegal. The owners of the lots not assessed received no benefit from the extension of the sewer, and as has been said, “only those whose property is specially benefited by the improvement can be compelled to pay such taxes. Special taxes to pay. for sewers and drains can be levied only upon the property of persons who can use such sewers and drains, and not upon persons who cannot use them. And the taxes should be apportioned in accordance with the special benefits received by each individual severally.” (Gilmore v. Hentig, 33 Kas. 167.) Even property that may be within the exterior lines or boundaries of what may be called a district, but which does not abut on the sewer, or from the topography of the ground or other cause cannot be drained or specially benefited by the sewer, cannot be specially assessed or taxed for its construction. It is not required, nor is it necessary that the boundaries of a sewer district shall be define¿ by an ordinance, and indeed the statute contemplates that sewers may be constructed by districts or otherwise. (Gen. Stat. of 1889, ¶ 563.) When a sewer system is adopted and is being built by districts, it is then important that the records shall show the territory or property assessed for any part of the sewer which is constructed, so that it shall not be again assessed for a sewer in another portion of the city. When property has paid its full proportion for a sewer in a certain territory or district, it cannot be transferred to another district, nor held liable for the construction of sewerage facilities in another district of the city. So far as the sewer in controversy is concerned, the public records sufficiently show the extent of the district, as well as the property benefited and assessed for the sewer, and no dispute can arise in the future in this regard. Under an ordinance adopted in 1888, the city of Atchison was authorized to and did enter into a contract with certain engineers to furnish the city with plans and specifications for a complete sewer system. In pursuance of this contract, maps, plans and specifications were duly prepared and furnished, which were paid for by the city. The system thus provided was adopted by the city, and the Fourth street sewer was made a separate one under the plans and system provided. These plans and specifications, together with the map made and furnished by the city engineer, and the assessment which has been made, sufficiently indicate the existence of the district and the property taxed to fully protect the tax-payers from a second assessment for the same purpose.

The further fact referred to by counsel, that a short section of the sewer was formerly built at the expense of the city, is no objection to the validity of the assessment made in this case. We might stop here, as the other points were decided against the defendants in error and they have taken no steps to obtain a review of such rulings.' It will not be improper, however, to briefly notice other of the objections to the assessment urged in the district court and somewhat discussed h.ere.

' by’dtyadop"ted Some of the defendants in error had constructed private sewers or drains at their own expense, and they now claim that they should not be taxed for the sewer built by the city. While one of these drains was quite expensive, it is not found or stated that any of them were authorized or adopted by the city as a part of the sewer system, nor that they are suitable or adequate for the purposes intended. The legislature has conferred upon the city authorities the discretion and power to provide sewerage facilities, and for that purpose has given them control of the streets and alleys where the sewers are built. They are to determine the necessity for sewers, as well as the character and capacity of those that are required to be built. To allow property-owners to decide for themselves whether their lots needed sewerage facilities, or to permit them to provide private ditches, drains, sewers, or cesspools as they might determine to be sufficient, would be wholly impracticable and would prevent the adoption of a general sewerage system under the control of the city, as the statutes evidently contemplate. The property of ^086 w^° hac* built private sewers adjoined upon the new sewer, and we think the district court ruled correctly in holding their property liable to contribute toward the construction of the sewer.

4' own7r™iia Another objection to the assessment was, that the east half of lot 14, in block 13, was assessed, although the whole of the same was not owned by one person. It is stated that Amelia J. Otis owned the south 90 feet, while her husband, A. G. Otis, owned the north 60 feet of the half lot; and it is said that she cannot avail herself of the benefits of the sewer except by passing over the property of her husband. In addition to the fact that the question was not properly brought here, a sufficient answer to this objection is, that there is no recorded plat showing any subdivision of this lot, or that the frontage of the same had been changed; and it does not appear that any of the public records showed that the title to the lot was in more than one person at the time the proceedings were taken and the assessment made.

5. statute not applicable. A remonstrance of a large number of the property-owners was filed with the city council before the letting of the contract for this sewer, and under the provisions of ¶ 558 of the General Statutes of 1889, it is suggested that this is a ground of objection to the assessment. The.provisions of this statute apply only to paving and macadamizing a street, and the making of assessments therefor, and is not applicable to the build-iDS of sewers. We find no statute authorizing filing or considering of such a remonstrance where sewers are about to be built. Neither the preliminary proceedings nor the mode for the apportionment of such taxes is fully prescribed by the statute; the council is therefore left to adopt such proceedings and mode of apportionment as will be fair and equitable. An examination of the proceedings, which have been set out at length in the statement of facts, leads us to agree with the conclusion of the court, that the proceedings were fair and in substantial compliance with law. The city council first adopted a resolution that the construction of the sewer was necessary, and this resolution was published. Under the direction of the city council, the'city clerk advertised for bids for the construction of the work, and the city engineer prepared plans, specifications and estimates of the work, which were filed in the office of the city clerk. Bids were received, and one made by Shaw & Downing was accepted and the contract awarded to them. The compensation for the work was to be paid by the city in cash or bonds, at the option of the city; and in pursuance of an ordinance duly enacted, the mayor and clerk entered into a contract with Shaw & Downing for the construction of the sewer. The estimate of the cost of the sewer, made by the city engineer, was $13,047.28, while the contract price was $11,-500. In pursuance of a resolution, appraisers were appointed to make an assessment of all lots and pieces of ground liable to assessment, without regard to buildings and improvements thereon, and after their appointment and qualification they proceeded to the discharge of their duties, and made a report in writing of their appraisement. This report was subsequently amended and corrected. Thereafter, and upon due notice, a board of equalization met to hear any complaints which might be made of the appraisement, and all the property-owners were given a fair opportuuity to test the fairness and validity of the valuation and assessment that were made. Quite a number of the property-owners appeared and presented objections, but these were mainly disallowed, and the report of the appraisers, with one correction, was adopted. The contractors commenced the construction of the sewer and prosecuted the work without delay, under the supervision of an inspector appointed by the city, in connection with the city engineer, and the work was completed about December 2, 1889, at a total cost of $11,516.41. All of the complaining parties knew that the sewer was being constructed, and quite a number of them connected with the sewer during its construction, and since, and are now using the same, and these legal proceedings were not begun by any of them until after the completion of the work and its acceptance by the city. It thus appears, that before the tax was made a permanent charge upon the property, the owners had full notice of the proceedings, and had an opportunity to contest the validity and the fairness of the valuations and assessments that were made.

fi' of burden. An objection was also made that the cost of the construction of the sewer and the assessments made to pay the same included an item for the expense of engineering and superintending the construction of the sewer. The entire expense of such an improvement is to be charged to the property peculiarly benefited, and the engineering and supervision of the work are as essential as the excavations to be made, and we see no reason why the expense of the same should not be included in the assessment. (Gen. Stat. of 1889, ¶563; In re Lowden, 89 N. Y. 548; City of St. Paul v. Mullen, 27 Minn. 78; In re Tappen, 36 How. Pr. 390; The State v. Council of Elizabeth, 30 N. J. L. 365.)

7 Bonds to pay for sewer. The validity of the tax proceedings was assailed upon the ground that there were no funds in the treasury at-the time with which to pay for the improvements, and that no ordinance had been enacted setting aside in the city treasury the money to pay therefor; and reference is made to the 40th subdivision of ¶ 555, Gen. Stat. of 1889, and also to §3, ch. 34, of the Laws of 1883. The provisions of the statute cited, however, are not controlling. Whatever might be the rule where the improvements are to be made by a general tax levy, it is clear that the legislature has provided specifically for the construction of improvements at the expense of the abutting property, and to pay the costs thereof by installments, and that for such installments they may issue improvement bonds of the city, to run not more than ten years, nor to bear interest exceeding 7 per cent, per annum. These bonds may be issued to the contractor in payment of the improvement, and provision is made for the levying of special assessments upon the property specially benefited for the redemption of su°h bonds. This is a later act of the legislature, aDC¡ js framed upon the theory that the work shall be done upon credit and when there is no money provided or set apart for the payment of the same. (Laws of 1887, ch. 101.)

There are no other objections which we deem it necessary to notice. From an examination of the record, we are satisfied that the tax proceedings are in substantial compliance with law and should be sustained, and that the injunction prayed for should be denied.

The judgment of the district court will be reversed, and the cause remanded with directions to enter judgment on the findings in favor of the plaintiffs in error.

All the Justices concurring.