The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1895-05-03
THE COURTS RULING
AROSE OVER STREET PAVING
Defendants Apply For an InJunc-
ton Restraining the City From
Proceeding to Pave. and the
Matter Goes to Law.

Great Falls. May 2.-In the summer
of 1898 the city council awarded a con-
tract for the paving Of Central avenue
to Henry vogel. There was considera-
BILE opposition to the paving and from
the start obstacles were encountered,
and for a time feeling ran high. AS q
elimination of the difficulties Wilmer
Atkinson of Boston and other owners
of property on Central avenue applied
to the district court for an injunction
restraining the city of Great Falls and
Vogel from proceeding to pave. The
case has been thoroughly argued and
considered by the court. The following
order was handed down:
wilmer Atkinson ct al. plaintiffs.
va. the City of Great Falls ct al. de-
PENDANTS The hearing in the above en-
titled cause. coming on to be heard be-
fore the court, sitting without jury, on
the - day OF April. 1895. after hear
ing the evidence produced on the part
OF the plaintiffs and defendants. and
after argument OF counsel, IL il hereby
ordered that the defendants motion to
dismiss the action. upon the grounds
stated in such motion. is hereby grant
ed. c. H. BENTON. Judge.
dated May I, 1895.
This action was brought and tried
upon the theory that the Indebtedness
which will be incurred in carrying out
by the defendant. the City of Great
Falls. of the contract with the defend
ant. Vogel for paving of Central ave-
nue.. viii exceed the limit of per cent
Of taxable property in said city at the
time the city made the contract, in
GLIDING other Indebtedness of the city
- L.
therefore in excess of the powers Of
the common council and void.
81 think the theory upon which the
case was brought and tried is errone-
Gus. Section 430. chapter 22. fifth di-
vision. Compiled Statutes. as amended
by the Laws OF 1893. page 131. provides:
The city council may cause any street.
avenue or alley. or any part thereof, to
be graded. paved, macadamized or
otherwise improved, upon the same be-
ing ordered by a two-thirds vote of
all the members of the council. For
the purpose of so improving any street.
avenue or alley, or building any side
walk or gutter. the city council may
levy and cause to be collected upon the
lots, tracts or parcels of ground on
such streets, avenues or alleys inn
proved, or upon the side thereof where
such sidewalk or gutter is built, and
upon the owners thereof. a tax suffi-
Client to pay all expenses of whatever
character of construction and making
such improvements. Where such i'm
provement consists of paving or ma
cadamizing. the cost shall be assessed
to the property on either side of the
street, opposite to which said paving or
matchmaking is done.
ut is clear from the minutes of the
meeting of the common council, re-
ceived in evidence, that such body pro-
ceeded under the law above cited. for
in the minutes of Sept. IL, 1894, within
the motion ordering such paving to be
done. is this paragraph: And the cost
of curbing and paving the same be
borne by the owners of lots abutting
thereon
THAT the city council had the right
to assess abutting property for the
cost of such improvement is sustained
by an almost unbroken line of author
tiles. among which are End Dillon on
Municipal Corporations. section 761.
and oath Encyclopaedia of Law, page
1914. 1t follows that where the city
has seen fit to proceed under the law
above referred to, which they have an
right to do, that such pro-
ceeding creates no debt against the
coty. but that the expense is borne by
individual property owners. who. un-
der the theory of the law, are pre-
sumed to be benefited by such improve
ment to the extent OF its cost"