The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1894-11-16
HOW IT WAS DONE
JUDGE HORIZONS OPINION ON THE
ASPHALT PAVING SUIT.
He Reverses the Decision of the Trial
Court and Orders judgment En-.
tered in Favor of the City-Decis
ion Knocks Out All the Cases
Opinion Given in Full.

true copy of the decision OF the supreme
| court, In which all the justices conferred,
| with reference 10 the controvers over the
paving of Douglas avenue. The decision
| was made upon an agreed statement OF
| facts, by the attorneys, which Is as fol-
| lows:
| Wichita being city OF the first Class,
under the laws Of Lne state, in force in the
year 1898, paved portion of Douglas av-
enue, one OF the principal streets in that
CITY, at the cost of SIS. 600. 90 by making a
| special assessment against the premises
within the paving district. Oscar ID
Barnes was "a lot owner on the avenue.
ION the 9th day of March. 1895 petit
ton was presented 10 the mayor and coun-
ell asking that portion of Douglas av-
enue be paved. On the 18th day of March,
| 1898, the petition was by resolution or
dered spread upon the Journal, the coun-
Gil having found that the petition was
signed by the owners of majority of the
front feet abutting on the avenue. At the
same time the mayor and council OF the
city passed a resolution declaring il neces-
sary TO pave the avenue, within the points
mentioned, and the resolution was duly
published in the Wichita Daily EAGLE, the
official paper Of the city, for six consecu-
tive days thereafter. the first publication
being m ade March IS. 1873.
On the 18th dsy of April 1898, the en-
gii GERS sworn estimates for paving the
avenue were received and adopted 10y the
council. On Nay 1st, 1895, the city clerk
WAS instructed 10 advertise for proposals
for paving the avenue, and did advertise
for bids for the paving. On May Sth, 1893
the bids were opened and the contract
awarded 40 The Barber Asphalt Paving
company. the lowest bidder.
Goa the 9th day 81 June. 1893. appraisers
were appointed by ordinance 10 appraise
the real estate liable for special ASSESS
ments tor paving the avenue. On July
10th the appraisers submitted their re-
port, and on July l4ch the mayor aud
council, as board of equaliz .tiou. CON-
firmed and adopted the report.
''On July Goth, 1893. the city clerk of the
city gave the various property owners, VINO
owned property liable Tor special ASSESS
ment, thirty days notice In writing OF the
amount Of such special assessment levied
against their respective properties.
"On August 18th, 1898. HI ordinance was
passed apportiOnIng aud making IA special
asse -sn1eut Tor the paving improvements,
auu fixing the number of instdllments Ia
which the sand assessments should be
made.
After the expiration of thirty DAYS
from the time OF the giving OF this notice
of The amount of the special assessments
levied against TIE respective property
owners Oh said avenue. the city issued its
Improvement bonds IN the sum of S1S,OOJ
to pay for the paving. and the bonds were
delivered long prior to the commence
ment of this action.
'On the 10 Ia day of December, 1898,
Oscar ID. Barnes commenced this aciIOu
to ell join the collection of the tax levied
upon portion of the property abutting
upon the avenue 10 pay for the improve
ments. Tie injunction was granted by
tue district court. John A. Doran, as
county treasurer OF Sedgwick county and
Others bring this case here for review"
OPINION OF THE COURT By HORTON.
1T appears from the agreed statement
of facts that Oscar ID. Barnes, now com
llaiuiDg of the special assessment levied
upon his property AUDITING on Doug las
avenue in Wichita, lived i'll that city dur
iug the time of all the proceedings relating
To the paving; that he signed the names of
M. l.. Barnes Il Son to the petl ion for
211 feet; that 215 feet was greater amount
of AUDITING 'front.' feet than lie had author
ity TO represent; that he was doing busI-
ness upon the street proposed to be paved;
that lie took the oflici Al paper If the city;
that all the proceedings of the mayor AID
council concerning the paving were pub
lished herein; that he knew OF the paving
OF the street; that he knew "A special assess
meut would be made upon the abuttng
property To pay for the improvement; that
while the question of paving the street WAS
beiug considered by the mayor aud city
council, lie waited upon members of the
council and urged them 10 vote for Asphalt
paving: that Two of the members waited
upon by him changed their votes and voted
for Asphalt aud that the paving enhanced
the value of his property. IL also appears
q H.. l..f.. ~
petition pre- scented TO che MAYOR aud conn
ell until a few days before the Commence
meuJ OF this action.
.'Oa the part Of Barnes it is insisted, as
il was insisted upon the trial that the
petition WAS not slgGed by the owners of "A
majority of the front feet AUDITING on
Dou ,las avenue. the mayor and council
acted without jurisdiction. Paragraph !
55S general statute OF 1889; section o. CHAP !
ter 75 session laws o. 1891. Section u !
read:
Provided. That no resolution to pave, |
macalam.zs or grade, reDave. remacada- !
ME- OF regradc any stree. lane OF alley, !
shall be valid unless a petition, asking for |
such Improvement has been ordered spread |
upon the journal, which petition must be |
signed 10y the owners of IA majority OF the |
front feet ahuttIug upon suca street, Lane /
or alley TO be improved
THE contention o. the defendants below |
is that the action !, barred, becauSs not /
commenced within thirty days Hom the |
time The amount of assessment was asceT- |
tained. Paragraph 500. general statute of |
1889. prescribCs that:
No suit To SET aside the said special /
assessment or 10 eulOlu the making Of the /
same. shall be bronght, nor any defense to :
the validity thereof be allowed, after he /
exp ration Of thirty days from the time |
the amount due on each lot or piece OF |
urnnnl liable f,r SuCh ASSESS nlplT : pScPr- :
taiued. section /, chapter l0l, session /
laws OF 1887.
ut appears from the record that the !
total Du-nber OF feet between the points To I
be paved on Douglas avenue. fronting 4
thereon = 615i; that the petition presented /
to the city council asking for a portion o. /.
the street - he paved, purportsd 10 Repre- !
sent a,-gS Ieet; that the petition IN ofJer /
Il have a minority OF thu feet represented !
between the points proposed TO tie paved. ]
ought 10 have contained more than 81 I
tret. that the petition presented purposted 1
To represent 80 feet In excess ot "A majhr- (
lIy Counting the &15 feet s'gnei TO toe 4
petition by plaintiff below, l. appeared /!
when tes ed IL the trial court, that the /,
number - feet acjuAilg represented upon 1
I ne petition was less than a majority IF 1
the abdtting froa: feet
I'VE have 10 inclination TO change tie /
ruling of this court that such Inferior !
iuli,dictions As boards Of county commits !
siOners ana city councils, in their proceed !
.,.rS, are 10 be ueld 10 the strict limit of I
th,.r Eut .ority u conferred and pvescg.0- |
Ell by The statut-, Commissioners II 4
WvandotIe county vs.. BARKER. ~ Kansas, /
60 aud the decisions cited But Ia this /
case il does not sffiFmatlvely appear upon /
the lace of tie pstltlon that il
Is not signed Ly a majority OF the |
owners OF the front feet abutting OF /
I lie stree, TO Be- paved. The agreed state !