Koons v. Lucas

Rothbock,. J.

I. We have given the substance'of the pleadings, or so much thereof as is necessary to a full understanding of the questions which are involved in the record. Counsel for appellant lias filed an elaborate argument, some of which has no application to the issues contained in the pleadings. For example, the pleadings do not question the validity of the ordinance and resolutions providing for improving the streets, and we are.treated to a lengthy argument upon the invalidity of these acts of the city council, because it is contended that they contain more than one subject, and are, therefore, void under section 489 of the Code. .It is unnecessary to more than mention the fact that we must try the case upon the record which the parties have made in the court below.

, „ 1. MUNTOIPATj fmprorement ot streets. II. There is really but one question in the case, and that is whether the improvements made in 1875 were mere repairs, or was it such an enterprise as might be done by the city, and the expense thereof taxed to the owners of abutting property. Section 466 of the Code provides “that municipal corporations shall have the power * * * to curb, gravel, pave, macadamize, and gutter any highway or alley therein, and to levy a special tax on the lots and parcels of land fronting on such highway or alley, to pay the expense -of such improvement.” The evidence shows beyond all question that in 1875 said Second *180 street was in a very bad condition; that it was much below grade, and lower in the middle than at the sides. The gutters had never been paved, and no curb-stones had been set. The city council ordered the street to be brought to grade, and curb-stones to be set, the gutters paved with stone, and the street macadamized to the depth of six inches with hard and durable stone, to be covered with two inches of gravel. The work was let to contractors, and was done according to- certain, plans and specifications. That such an improvement was just sucb as is contemplated by the statute can admit of no question. The improvement was within the very language of the statute.

Section 465 of the Code provides that the city council have power to provide for the grading and repairs of any street, and shall defray the expenses of the same out of the general funds of the city. Counsel for appellant contends that the street in question was macadamized, and gutters made therein, in the year 1888, at the expense of.the abutting property owners, and that the improvement made in 1875 was no more than repairs, and should have been paid for out of the general fund. The evidence shows that the street was filled in 1868-with the refuse of stone quarries, broken up so as to make a smooth road-bed for the time being. There were no gutters made, unless it be called guttering to leave the stone larger at the side of the street than on the traveled part, and sloping so as to allow the water to run off. No stone were set in place so as to make permanent gutters, and no curb-stones were set. The evidence shows that whatever improvement was made in 1868 soon became worn out, and that nothing but a new roadbed would answer the demands of travel, and tbe public convenience. This was practically what was done; the entire street was raised; the whole surface was changed by a new and independent structure; it was not a mere repair of the street. The evidence shows that the former improvement was worn out and destroyed, and an entire reconstruction was necessary.

It is said, however, that the city having once exercised the power, and compelled the' abutting property owners to pay for *181 the improvement of tlie streets, the power is exhausted and cannot be again exercised. That such power is continuing and may be exercised whenever the public good requires it, and is not exhausted by being once exercised, seems to be too well settled to be now questioned. Dillon on Municipal Corporations, Yol. 2, sections 543,619; Dooley on Taxation, 422-3.

It is further claimed that if the city had kept the original improvement in proper repair there would have been no necessity for the .new improvement. It seems to us that the matter of there pairs of the streets rests in the sound discretion of the city council, and we fail to find in the evidence that such discretion was abused. For aught that appears, the ordinary repairs which are necessary to be made from year to year, such .as arise from the action of freshet and flood, the wearing of ruts by the wheels of vehicles, and the like, would not have obviated the necessity for the new structure.

3 _._. street railway. III. It is next insisted that a part of the expense should have been assessed and levied upon the property of the street railroad company. It appears that the line of the railr0ad was built and is operated upon the street in question. It does not own any part of the street, nor any lot abutting on it, but has a mere easement or right of way over the street. The statute is .explicit The city council has power to “levy a special tax on the lots and parcels of land fronting on such, highway or alley to pay the expense of such improvements.” The levy of a tax against the railroad company would, therefore, be unauthorized by law, and void.

Affirmed.