Blair v. City of Atchison

Opinion by Clogston, C.: But one question is presented for consideration, and that is, what is the proper manner of levying an assessment for the paving and curbing of a street between two blocks ? To determine this question, § 4, chapter 99, of the Laws of 1887, must be construed. So much of said section as affects this question is as follows: “And for all paving, macadamizing, curbing and guttering of the streets and alleys, the assessment shall be made for the full cost thereof on each block separately; on all lots and pieces [355] of ground to the center of the block on each side of such street or avenue the distance improved or to be improved.” Under this statute the city curbed and paved Sixth street in the city of Atchison, being the street separating blocks 16 and 39, plaintiff’s property being a part of block 16; and under this statute the city was seeking and claiming the right to charge the cost of the paving and guttering to the center of the street to the lots and pieces of land to the center of block 16, and the cost of paving and guttering the other half to the lots and pieces of land to the center of block 39. The plaintiff in error contends that this manner of assessment is wrong; that the entire cost of paving the street between said blocks should be ascertained and the levy made upon the half-blocks on either side of the street for the full cost of such improvement, according to the value of said lots. We are inclined to the view taken by the plaintiff in error, and think that the statute above quoted plainly indicates that as the manner of assessing the cost of such improvements. The statute says assessments shall be made for “the full cost thereof.” The full cost thereof refers to the paving and guttering of the street. Upon what property is this assessment to be made ? “On all lots and pieces of ground to the center of the block on each side of the street or avenue to be improved.” The mistake has doubtless arisen in determining what is meant by “ each block separately.” We think that this means that each block, or the street between each block for the distance of a block, shall be separate from that of an adjoining block in the city; that each block, or the two half-blocks divided by the street, the distance of a block, becomes a block or taxing district as contemplated by § 4, and does not have reference to a division of the costs and apportionment of the expenses of its improvement between the two half-blocks divided by the street. To give this statute the meaning contended for by the defendant in error, would, in our judgment, in many instances work great injustice. The half-block on one side of the street may be of comparatively little value, while the half-block on [356] the opposite side may be of great value. To divide the entire cost of the improvement equally between the two half-blocks would throw as great a burden upon the inferior half-block as upon the more valuable half; and in some instances the improvement of the street might cost more and the assessment levied upon the property be greater than the entire value of the half-block; but by a division and apportionment of the expense, as contended for by the plaintiff in ei’ror, it would leave the burden upon the half-block on either side of the street, according to the value of the lots and pieces of ground composing each half-block. We therefore recommend that the court below be directed to grant the temporary restraining order, as prayed for by the plaintiff in error. By the Court: It is so ordered. All the Justices concurring.