Dargatz v. Pauley

The opinion of the court was delivered by West, J.: The plaintiff sued to enjoin the collection of a sidewalk tax on the ground that the walk had been built by the city without lawful authority — that is, by [699] resolution and not by ordinance as required by statute (Gen. Stat. 1909, § 1374), and being defeated he appeals. The pleadings and rulings were such that the only question necessary to be determined concerns ti e alleged lack of authority. It is conceded that an ordinance was indispensable, but the city claims that a proper and sufficient one was in force. It appears that at some previous time the city had enacted ordinance No. 157, entitled “An ordinance relating to the sidewalks, and prescribing the width, material, manner of constructing sidewalks in the City of Marysville, the width of space reserved therefor, and repealing all ordinances in conflict therewith.” In addition to prescribing the width, space, material and manner of construction, the procedure incident to the ordering of a sidewalk and its construction was prescribed by section 4, which in effect provided that upon the presentation of a proper petition a walk could be ordered built by resolution followed by a certain prescribed notice. A proper petition was presented and granted, and the walk was ordered constructed, proper notice was given, and the tax was levied by an ordinance duly enacted. If this all amounted to a compliance with the statutory requirement, then the tax was valid and the injunction was rightfully refused. The plaintiff’s theory seems to be that a general ordinance like No. 157, authorizing the council to proceed by resolution upon the presentation of a proper petition, falls short of the requirement, and the case of Dilts v. Stockton, 73 N. J. Law, 158, 62 Atl. 448, is cited. It was there held that as the statute required the common council to act by general or special ordinance, a general ordinance assuming to authorize action by resolution was insufficient. Here the general ordinance itself disposed of many matters touching any walk thereafter to be laid, and expressly required each one contracted to be petitioned for, a proper notice to be given, and the adoption of a resolution. [700] After these things were done the tax was levied by-ordinance, so that really the authority for the expense of the walk in question consisted of two ordinances and one resolution. The statute empowers cities of the-second class to enact ordinances for the following purposes : “To open and improve streets . . . make sidewalks . . . for the purpose of paying for the same-shall have the power to make assessments in the following manner.” (Gen. Stat. 1909, § 1374.) It has been held that it is necessary to act by ordinance in appointing a deputy marshal (Prell v. McDonald, 7 Kan. 426, 443); that a stone sidewalk is not authorized by an ordinance calling for a plank sidewalk (Sloan v. Beebe, 24 Kan. 343); that resolutions are not. sufficient to authorize the work of street improvement and the levy of a tax therefor (Newman v. City of Emporia, 32 Kan. 456, 4 Pac. 815); that a city can not. by resolution only build a walk, having “never enacted any ordinance regulating the procedure for the building of sidewalks” (Barron v. Krebs, 41 Kan. 338, 339, 21 Pac. 235). But considering the statute, the decisions, the ordinances and the resolution, we conclude and hold that the city acted in substantial compliance-with the statute, and in view of the requirements of the general ordinance-, supplemented by the petition,, the notice, the resolution and the ordinance levying the tax, the sidewalk was in fact and in law authorized by, ordinance. Municipal officers are presumed to act in accordance with the law (Kindley v. Rogers, 85 Kan. 645, 118 Pac. 1037), and there is no showing that the-walk in question did not conform in all respects to the-provisions of ordinance No. 157, and certainly, by means of the notice, the resolution, and the levying-ordinance, the abutting owner had full opportunity to be advised of the work and to make any desired protest, or resistance. [701] The question of estoppel is principally discussed, but the views already expressed make it unnecessary to consider or determine that question. The judgment is affirmed.