Powell v. City of St. Joseph

Napton, Judge, delivered the opinion of the court. This'suit presents the same question raised in the case of City of St. Joseph v. O’Donoghue in a different mode. This was a petition to enjoin the marshal of the city from selling certain lots, by virtue of the act of the legislature of November 21,1857, authorizing the City of St. Joseph to macadamize the streets of said city, and certain ordinances passed by the corporation to carry out the process granted by said act. The question of the constitutionality of this law is brought up by a motion in arrest of judgment. We make no comments upon the form in which the question is raised, as it is agreed that the only object was to bring up the question. The right of the city, under the act and its ordinances, to apportion the cost of macadamizing the street crossings, as well as of such parts of the streets as were in front of lots, among the lot holders in proportion to their front feet, has been discussed, but is really not presented by the record. We do not perceive, however, that any different conclusion could be reached, if the facts, as we understand them, had been presented by the record. It is not to be supposed that the legislature intended to authorize the streets in front of buildings or building lots to be paved, and that portion of them which intersected each other to be left unpaved. As the intention was doubtless to have a continuous pavement, [349] we can not see that the distribution of the expense of paving the crossings was to be upon any other plan than the one adopted for the expense of paving the streets generally, although the crossings were not literally in front of any lots. Judgment reversed and case remanded. The other judges concur.