Gregg v. Stuttgart

Hire, C. J., (after stating the facts.) This appeal questions the sufficiency of an ordinance of the city of Stuttgart providing for the construction of sidewalks. The parts of it attacked and the proceedings under it will be found in the preceding statement. The ordinance was passed -under authority of the act of April 8, 1903, giving enlarged and additional powers to cities of 'the first and second class, so as to enable them to require property owners to construct sidewalks. The act is section 5542 of Kirby’s Digest. It is said that the act gives the council power to compel the property owner to build, rebuild, maintain and repair sidewalks and to designate the kind of sidewalk, the kind of material to be used, the specifications to be followed, and the time within which such improvement is required; and that, as this ordinance fails to designate the kind of sidewalk, the kind of material and the specifications, it is fatally defective. The oi'dinance required sidewalks in District No. 2 to be built of brick, cement, concrete or plank, at the option of the city council or the street and alley committee; and the walk to be not less than four feet wide, and such distance from the ground as the council or committee shall prescribe; and this work was required to be done within thirty days from notice. The notice of August required, pursuant to an order of the council, a cement walk four feet in width within thirty days. This order was not complied with, and in October the council passed, an order requiring the construction of a cement sidewalk in front of the designated property within thirty days from service of notice; the sidewalk to be not less than four feet in width, of the same length and grade as the sidewalk already constructed on the west side of Maple Street, so as to present an even surface between said streets and said sidewalk. This order, and a renewal of the former notice, was served on Gregg April 15th, and the failure •to comply with it is the basis of this suit. Every requirement of the statute is met in these proceedings. If the specifications are not more definite, it is the misfortune of the city, and affords no ground of complaint for Gregg. When he builds such sidewalk as is called for in the notice served upon him, he has fulfilled his duty; and whether it is such an one as desired can not be questioned by the city, because it did not specify more particularly the kind wanted. However, these orders, reasonably construed, furnish all the information which is needed to build a proper cement sidewalk; and a builder of sidewalks would have no difficulty in complying therewith. Counsel attack provisions relating to District No. 1, but that is no concern of Gregg’s; only so much of the ordinance as affects his property in. District No. 2 is involved in this suit. It is contended that the proceeding must be tested by the ordinance, and not by the resolution of October. There is no reason why the proceedings can not be tested under both. The resolution is evidently supplemental, and in aid of the enforcement of the ordinance. It is somewhat in the nature of an amendment, making certain some of the matters left at large in the general ordinance. The council is expressly authorized by the statute to require sidewalks to be constructed by ordinance, resolution or order; and therefore the form of the city’s mandate may be in any one of these methods of procedure which the council may see fit to adopt; or, if it pleaseth the council, it may. adopt all of -them to reach- to the same end. It is a mere choice of tools, or weapons, to require the property owner to lay a sidewalk. Judgment affirmed.