Challiss v. Parker

The opinion of the court was delivered by Brewer, J.: There are but two questions in this case. The plaintiff is the owner of certain lots on Santa Pe street in the city of Atchison. The authorities after proper proceedings let a contract to sidewalk that street. The sidewalk was built. The assessments therefor upon plaintiff's lots were not paid, and the authorities proceeded to sell. To restrain such sale this action was brought. And first, the plaintiff insists that the supposed sidewalk is no sidewalk, but a bridge. The proposals were for a sidewalk; the contract was for a sidewalk; the work was accepted as a sidewalk, and the attempted sale is for nonpayment of a sidewalk-tax. The structure is spoken of all through the findings as391 a sidewalk. It is described in the petition as a board walk, four feet wide, resting on stringers set on blocks and posts. The only reason for not considering it a sidewalk is, that in two places for short distances it does not rest on the ground, but is elevated on trestle-work, and has a hand-rail on either side. On one of these places it crosses a branch of White Clay creek, a running stream. ■ A sidewalk is defined by Webster as a “raised way for foot-passengers at the side of a street or road; a foot pavement.” The structure described in the petition and findings answers this definition exactly. It is a raised way for foot-passengers. The mere fact that for a short distance it is elevated on posts, instead of resting on the ground, is wholly immaterial. Nearly all of Chicago has been and much of it is still sidewalked in that way. Yet it would amuse the citizens of that city to be told that these walks thus elevated on posts were not sidewalks. You can hardly travel over any city in the land, without finding here and there for short distances the sidewalks raised on posts, instead of resting directly on the ground. Nor is it any the less a sidewalk because under it in one place is a stream of running water. It appears from the findings to have been built on the side of a regularly laid-out street, and all the way in front of regularly laid-out lots. If the flow of water is not sufficient to hinder the platting and sale of city lots, it will hardly be sufficient to change a sidewalk into a bridge. It not unfrequently happens that the owners of ground, proposing to lay it off into streets and blocks, wholly ignore small streams of water, expecting that the sewerage of the future will change the channels; and for all the record shows this seems to be just such a case. Can it be that under these circumstances no sidewalk can be built? Of course, it is possible to conceive of large streams of water over which the city authorities might attempt to build foot-bridges under the name of sidewalks. In such case we should hardly expect to find the bed of the stream laid off into lots, and the owners vigorously striving to prevent tax-titles from accumulating on' them. At any rate, the record presents no such case. We [392] have treated these objections as they have been presented in. the brief of counsel. Yet after all,- it seems to us that the gist of the objection really lies in this, that the street was .sidewalked before it was graded, and that in this indirect way the learned counsel has ingeniously sought a re-examination <of the question decided in a similar case between the same parties about a year ago. (9 Kas., 155.) We have re-examined that question, and see no reason to change the conclusion we then reached. The streets are placed under the care- of the municipal authorities. (A. & N. Rld. Co. v. Garside, 10 Kas., 552.) To them is given the power to grade, to sidewalk, to sewer, to cm’b and gutter, to macadamize, and otherwise improve these public highways. The order in which such improvements shall be made is nowhere prescribed. There is in the nature of things no fixed order in which such work must be done. There is no reason why streets should be made passable for teams before they are for footmen. They •ate designed for the use and convenience of foot travelers, -equally with those who drive in carriages. The power to do these several works carries with it, in the absence of any restrictions, the discretion to detérmine the order and the manner of doing them. Whether that discretion was wisely -exercised in this case, we are unable from the facts in the record to determine; and even if we were able, it would not .affect the question of power. The second question is thus stated by counsel: “ It must be conceded that defendant has no authority to sell for a tax never on his tax-roll. Has he any more in case of a tax which no law authorizes to bé placéd on his tax-roll? ' He could not sell real estate for a personal tax, because not authorized, yet he may receive the tax. All assessment for taxation is ad valorem; and no front-foot description has ever existed on the assessment or tax-roll of defendant’s county. Sec. 69, ch. 107, Gen. Stat., 1043, contains the only authority for any city tax to go upon the tax-roll of the county, and it extends only to the percentage levied on the real and personal property in such city as returned on the assessment-roll of the [393] county. By what authority or law does any other than a percentage tax predicated on the assessment-roll get upon the tax-roll?” The 2d subdiv. of § 30 of the charter, Gen. Stat., 160, after providing for the asssessment for sidewalk and other street improvements, some of which were to be by the front foot, and some ad valorem, closes with this sentence: “The assessments made under this act shall be known as special assessments for improvements, shall be levied and collected as one tax in addition to the taxes for general revenue purposes, and shall be certified, to the county clerk of the proper county to be placed on the tax-roll for collection, subject to the same penalties and collected' in like manner as other taxes under existing law.” We think this clause gives ample authority for placing this tax upon the tax-roll of the county treasurer. * True, in this case the tax is placed in a column on the treasurer’s books headed “sidewalk tax,” instead of “special improvement tax,” or “special assessments for improvements;” but this, if a defect, is not one that calls for the interposition of the strong arm of equity. True, also, this section has been amended, and this particular sentence omitted: Laws 1871, pp. 148, 149, §§16, 17; p. 166, §81; Laws of 1872, pp. 200, 201, §§ 32, 33. But these taxes were on the tax-roll before the passage of these acts, and under the decision in Gilleland v. Schuyler, 9 Kas., 569, the right accrued, and the proceedings commenced were not interfered with. More than that, it may well be contended that § 26 on page 152, laws of 1871, and §43, page 205, laws of 1872, should be construed as a continuation of the authority given in the omitted sentence, for they provide that “ all taxes and assessments shall be certified,” etc. The judgment of the district court will be affirmed. All the Justices concurring. Footnotes [*] [ * Query : Did not eh. 122, laws of 1870, (p. 248,) “an act in relation to sidewalks and sidewalk taxes in cities of the second class,” furnish specific authority to the county clerk to place the u sidewalk taxes ” in question on the tax-roll ?—Reporter.]