Geiwitz v. Landis

ELLISON, J.

This action was instituted to enjoin and restrain the issuing of certain taxbills for street paving in the city of St. Joseph. The finding and judgment were for the defendants in the trial court.

The case was determined on an agreed statement of facts. It appears that by the charter of the city of St. Joseph as amended by Acts of 1903, page 60, section 8, that the board of public works may be of its own motion (if acted upon unanimously) prepare an ordinance for the improvements of streets to be submitted to the common council along with plans and estimate of the cost thereof. But before submitting such ordinance to the council the board of public works must publish a notice for five days notifying all persons interested, of the time and place for hearing any objection to the proposed ordinance. If no objections are made, or if made, are overruled, then the matter must be continued for fifteen days, within which time the owners of a majority of the front feet have the privilege of seiecting the material to be used in the improvement. If no selection of material is thus made, then the board may recommend any desired material.

It appears that the board of public works gave the proper five days’ notice of publication that ordinances (using the plural) would be introduced in the council “for the reconstruction of the macadam, curbing, guttering, alleyways and cross-walks on Tenth street, from the south line of Powell street to the north line of Lafayette *4 street.” It further appears that no objections were made by property-owners and that thereafter no selection of material was made by such owners. Thereafter the board of public works recommended to the city council, at one time, three separate ordinances, each being accompanied by the full plans and estimates of the cost of the improvements, and each being for a specified part of the distance over which the street was to be improved, and the three, taken together, covering the whole distance. These ordinances were regularly passed by the council and the work was let to three different contractors. One division or part of the work, that is, the work provided for in one of the ordinances, was let to this defendant. Each of the contractors completed the work let to them -within the proper time and before any of the taxi Jills in this case -were issued.

The point of objection to the validity of the proceedings is that the board of public works, after having given notice that it would introduce ordinances to the city council for the improvement of Tenth street from Powell to Lafayette, could not, although no objections were stated and although no selection of material was made, recommend to the council that the distance to be improved be divided and ordinances passed for the paving of each division, notwithstanding the whole would cover the entire length of the improvement of which notice was given; and the council could not pass valid ordinances following such recommendations.

After full consideration of the reasons suggested by plaintiffs’ counsel against the validity of such procedure, we have concluded they do not afford sufficient ground for denying the power of the board and the ■council. It is suggested that such proceedings may result in the denial of the right to the majority to protest, or to select the material with which the work should be done; since a minority of property-owners along the entire length of the improvement might be a majority *5 along only a part of that line. Property-owners in one of the divisions of the work might he opposed to having it done, yet realizing that they Avere a minority of the whole length might not make Avhat they would deem a fruitless protest, or selection of material, because of the majority being against them; yet if they had known that only a certain portion of the entire length was to be improved, they Avould have found themselves in a majority of such portion and could have had their way. This line of reasoning would be of more force as applied to an instance where only a portion of the entire length as advertised was improved. But in this case, the whole improvement Avas made as one scheme and plan and it was duly completed, making one improvement in keeping with the original and entire plan. The only thing the board of public works and council have done is to make the whole improvement by letting it in separate portions and to this we can see no valid and substantial objection.

We think the judgment should be affirmed.

All concur.