Heller v. City of Garden City

Johnston, J. i city of seoona siade™t?eesbyfor The planting of shade trees upon the streets is an improvement of recognized public benefit, and the power to provide for planting, maintaining and protecting them is expressly conferred upon the cities of the class to which Garden City belongs. Gen. Stat. 1889, ¶" 789. As an improvement, they are placed on a footing with sidewalks, and are provided and paid for in the same manner as sidewalks are provided and paid for. While provision is made that assessments may be levied against abutting property to pay for such improvements, the city is nevertheless primarily liable .to those with whom it contracts to make them. Under the authority of the statutes, the City might have made a contract for the planting and maintaining of trees upon the streets and avenues of the City and to pay the contractor for the same out of the general fund, reimbursing itself later by a special assessment against the 267 abutting property. City of Leavenworth v. Mills, 6 Kan. 288 ; City of Wyandotte v. Zeitz, 21 id. 649 ; City of Atchison v. Leu, 48 id. 138; City of Garden City v. Trigg, 57 id. 632, 47 Pac. Rep. 524; King v. City of Frankfort, 2 Kan. App. 530. „ , . . Sents?iiabi¿ generally. The City and its officers alone are authorized to make and collect assessments, and where they fail and refuse to take the necessary steps to provide a fund for the payment of the same, the contractor must then look to the City for the contract price of his work or the value of his services. When the City repudiated the contract and refused to take the necessary steps to collect the fund for the payment of the contractor, he was entirely helpless and without any means of ever obtaining compensation for his work. It has been suggested that a proceeding might be brought against the officers to compel them to take the steps required under the contract, the ordinance and the statutes ; but there being so many steps to be taken at different times by different officers the remedy is wholly inappropriate and inadequate. If the city officers had examined the trees, issued warrants for the amounts due the contractor, and levied assessments against the improved property to meet the warrants, no general liability would have attached; but, under the authorities, their failure and refusal to take these steps and their final repudiation of the contract, subject the City to a general liability, and the plaintiff was, therefore, entitled to maintain the action which he brought. In addition to the authorities already cited, see City of Leavenworth v. Stille, 13 Kan. 539 ; City of Atchison v. Byrnes, 22 id. 65 ; Fisher v. City of St. Louis, 44 Mo. 482; City of Louisville v. Leatherman (Ky.), 35 S. W. Rep. 625 ; Paving Co. v. City of Harrisburg, 64 Fed. Rep. 283 ; Manufacturing Co. v. City of East Portland, 14 Ore. 3 ; Dist. of Columbia v. 268 Lyon, 161 U. S. 200; Paving Co. v. City of Denver, 72 Fed. Rep. 336. The extent of the liability of the City cannot now be determined, but as plaintiff alleged a compliance with the provisions of the contract, we think enough was alleged to show that the City was liable for some amount; and therefore the judgment of the District Court will be reversed and the cause remanded for another trial.