The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1904-01-02
People on West Sixth Avenue
Feel They Have Been Misled.
Evidently City Has No Intention
to Put Pavement in Order.
CITY WON'T RESURFACE
Attorney Spencer Says Property
Owners Must Pay.
Decision in an Indiana Case
Is Cited.

People are beginning to suspect that
the city council has no real intention
OF making bona fide repairs on the
West Sixth avenue paving. Apparent
" the city is playing a waiting game.
and is expecting to rely on the legal
liability of the people living on West
Sixth to repave the street at their own
expense.
Some months ago the council passed
q resolution instructing the street COM
missioner to repair, as an experiment,
one block of the cedar block pavement
with new cedar blocks. or any kind OF
blocks he could get. The street COM
missioner thought he could buy some
old poles from the city railway saw
them uD into blocks and make the re-
pairs. But he found out that the rail-
way would not sell the poles. Since
theli the question of repairing the pave
ment has dragged along, other import
ant work forcing it to take a back seat
Nov that severe weather is likely TO
begin at any time it is not likely that
any rezaiTs can be made till spring
BY that time something may happen
VII ch Will let the city out altogether.
IL seems that most of the members OF
the council agree with the city engl-
ueer and street commissioners that re-
pairs on the old cedar block paving are
iIapracticable. They think that cedar
block paving is OuI OF date, and is not
worth fixing up. The city railway
seems to think the same thing, for It
has done nothing toward repaving its
riEht Of way on West Sixth. It is also
waiting for spring to come and some
thing to happen"
City Attorney Spencer is of the opin-
ion that if West Sixth avenue is re-
surfaced with brick. the cost viii have
to be paid by the property owners and
not by the city. In this he is sustain
ed by large number OF legal deeis-
ions. However. Mr.. Spencer admits
that there are decisions tending the
other way. The latest decision, how
ever, made in an indianapolis case,
seems to be exactly in line with the
conditions here In Topeka This decls-
ion was that the reSurfacing OF the
street was not a repair. The following
is from an Indianapolis paper:
1.-THE decision of Judge Carter has
been anxiously awaited by citizens OF
Indianapolis for several weeks. Its eff
feet will be widespread, meaning that
wherever resurfacing is done by the
board of public works the abuttlng
property holders must pay. There seems
little doubt that an appeal will be taken
UNLESS an appeal to the supreme
court results differently. the property
holders Of Massachusetts avenue will
be compelled to pay for the resurfacing
of that thoroughfare, already COM
pleted, in part, by the board of public
works. Judge Vinson Carter Of the SUI
perior court today decided that the
work of the city was an improvement,
not a repair and that under this con-
struction the property holders should
pay for it rather than it be taken from
the general fund for repairs. The two
separate injunctionS asked for by the
property holders of each end Of the ave-
nue. were denied. The residents Of the
upper end Of the avenue had brought
suit to enjoin the Barber Asphalt COM
pany and the city, while the action of
the lower end residents was against the
Marion County Construction company
and the city.
1.-THE construction placed upon the
two words repair and Improvement
concentrated the entire question. In
announcing his decision Judge Garter
said: While in some states therO is
a law bearing directly on this point.
there is nothing in the statutes of In
diana that furnish any light on it.
have had to rely almost entirely on
the meaning and application of the
words. It seems that a repair should
he anything that restores by patching
or adding %. In this case there is
question as to whether or not it was
so worn out that it needed to be re-
face put in. This must be new con-
Etruction in the same way that a
house burned to the foundation needs
entire reconstruction. In this case the
pavement was destroyed utterly, and
entirely renewed. 1t was necessary to
remove the surface down to the foun-
dalton. I may be wrong about it, but
! am pretty we'll settled in that view
I'm the matter of the residents of the
upper end of the avenue the court said
there was another element. It ap-
peared from the evidence. despite the
ahidavits presented by the board. that
promises had been made the attorneys
for the property holders that they
would be notified when final action or
the matter was to be taken. However
the contracts We're let without this no
~.
late to demonstrate The testimony
was TO the effect that the clerk of the
board had informed the property hold
ers that no action had been taken after
i had been.
ssThe judge indicated that had action
been taken by the residents before the
work on the streets had been done he
should have granted the Injunction, but
that now wl7en It IVES completed. and
the money spent he could not grant
it. The notice promised by the board
of public works was simply an accom-
mediation, not the requirement. of any
statute While their culpability was
none the less for this action, yet they
had not violated the law.
Another question, so the court stated
that had an important bearing on tht
case, in the event an appeal was ta-
ken to the supreme court is whethel
or not the property holders had no
been premature in their petition fol
an injunction before the collection O.
the assessment had been attempted.
1.-THE attorneys for the people stated
this morning that it would be neces
sary to see their numerous clients be
fore deciding on the matter of an ap
peal, but indicated their belief tina
this course would be followed. Messrs
Smith, Duncan, Hornbrook & Smiti
appeared for the people of the sOun'
end of Massachusetts avenue, whil'
Hawkins & Smith appeared for thos
of the north end. Linn Hays defended
the city's interests, Taylor & Woods ap
peared for the Marion CONSTRUCTION
company and John r. Wilson for tn
Barber Asphalt company"
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