The Emporia weekly news. [volume] (Emporia, Kan.) 1881-1889, 1885-10-08
OIEx COUNCIL rRoCEEDINes.
COUNCIL CHAMBERS. }
"a 400

COUNCIL CHAMBERS,
Oct. 8, 1885.
Regular meeting Of the council.
Present.. W.Thatcher, acting mayor,
and Messrs. Mccain, Bill, Watson and
Adds.
Minutes OF the meeting held Septem-
Der "a read and approved.
Street commissioners report for Sep
TENDER was referred to committee on
streets and alleys.
Report Of superintendent of water
works Was referred to committee on
water works.
Police judges report for September
was referred TO the committee on claims
The city attorney presented the follow
ing opinion, which WAS accepted and
ordered published in the proceedings:
To the Honorable Mayor and Council of The
city OF Emporta. Kansas:
GENTLEMEN: A petition heretofore
presented 20 you, signed by numerous
business men Of the city, asking that you
so modify the present ordinance that
merchants may be authorized 10 use not
70 exceed three 81 feet of the sidewalk
in front OF their stores for the purpose
Of exhibiting and displaying their goods
for sale, has bean referred to me as
city attorney with the request that give
| you my opinion in writing as to wheth-
er you can legally grant the request of
the petitioners. This question of the
right of q private individual to use the
sidewalk Of city for his private use
other than to pass and repass urOn the
same, has on more one occasion been
before our supreme court. In the case
ofSmith vs. the city OF Lesvenworth,
/ Is Kansas 81, which was an action
brought by Smith against Leavenworth
to recover damages for an injury sus-
tanned by him by reason of his falling
into an open cellar-WsY one of the
streets of the city, the supreme court
| says: "The fee of all streets 0ncluding
that portion Of the same on which the
sidewalk In constructed) In any city In
Kansas, is in the county in which such
city.Is situated. for the use and benefit of
the public. The only legitimate use
that can be made of street or the side
walk by any private person, is for pass
ing and repassiDg on the same. Under
existing laws no city has any power to
confer on any private person any right
to use street or any portion of the same,
for the purpose OF cellar-way, or for
any other purpose except for passing
and FepassIng."
And in the case of Jansen VS.. the city
of Atchison, 10 Kansas, 358, which was
an action TO recover damages sustained
by Jansen by breaking through defec.
tive sidewalk and falling into an area
the court uses this language: The loi
owner has no right to occupy the side.
walk with any improvement, nor to ex-
I AAn 3 ErH 49,
way. If the city permits a lot owner tC
occupy the sidewalk, or obstruct the free
passage over it, or endanger its safety
by excevatlng beneath It. it does no
thereby relieve itself from responsibility
Il is, as to third parties. the same al
though it had done these things itself
In other words il cannot transfer to pTl
vate citizens that responsibility, which
for wise purposes of public policy, the
law casts upon it, In reference To thu
care and safety of its streets and walks
Based on the decision above referred
:. to, and others 10 which l need not cal
Jour attention, 1t is my opinion that YoI
have no power or authority to confer
upou private persons the right to use
any portion of the sidewalk for the pur
pose of ''exhIbiting and displaying theI
goods for sale." nor for any ether pur
pose except for passing and repassiBi
on the same. Your grant of such priv
ilege would be void, and the city would
Be liable tor any damages to third par
ties arising from the use of the side
walk as contemplated in the attempted
grant Of such privilege.
Respectively submitted,
w. A. RANDOLPH,
City Attorney.
|. Weighmaster's report for September
was referred to the committee on ways
and means.
Petition for gas lamp at the northwes
corner OF Fourth and Exchange stree
was granted.
On motion of Mccain seconded b.
Adds, the matter of the right of the A
j T. 8 b. r. railroad to lay the addI-
tional track on Third avenue, as they die
on Sunday. October 4. from Rural stree
! TO West street; also the right of thu
Atchison, Topeka & Santa Fs railroad
to maintain the main and side tracks
on said avenue, and the power o
or of the city council to compel SAID rsIl
road company to maintain said ThirC
J avenue at the proper grade, and to keel
. the street crossings IN proper condition
was referred to the city attorney with In
structions to report in writing as L
same.
On motion of Watson the following
was adopted:
Resolved, That the pamphlet of re
, vised ordinances of the city of Emporia
as arranged and prepared by E. N
Forde by and under the direction ant
authority of this council be published a
of date October 10, A. D 1885, and tina
the same take effect as OF that date.
An ordinance providing for the pay
ment of the following claims was con
sidered by section, under a suspension
of the rules, and adopted by uusni
| nous vote:
P White, salary as marshal for ser-
tembeF, and removing nuisance ......$ 40 5
E II Forde, salary as clerk for Septem-
/ OeI % .