within the knowledge of the witnesses as to the condition of the crossing. If Steele had been asked to give his opinion whether the plaintiff was negligent at the time he received his injury, the inquiry would have been of the character declared incompetent in Monroe v. Lattin, supra. If Steele had been asked to give his opinion whether the plaintiff was acting in an unsafe and dangerous manner at the time ne received his injury, such inquiry would also have been incompe tent, within City of Parsons v. Lindsay, supra. In the dissenting opinion the following question put to the plaintiff is referred to and commented upon: "Did you consider it the proper discharge of your duty, at the time, for each of you to be looking west, and that train going east as fast as a man could walk?" I think that this question was properly excluded, because it seems to me it was asked solely to confuse and mislead the jury. I do not understand that there is any evidence in the record tending to show that, at the time of the injury complained of, the fireman and engineer were both looking west. The assumption of fact in the question was wholly unsustained by any evidence before the jury, and therefore the question itself was improper. Before alley improvements are made in a city of the first class an estimate of the cost of the work should be made by the city engineer "under oath." 2. SAME ESTIMATE. And the estimate should also be made in detail, and should not be left indefinite and uncertain; and such an estimate is a condition precedent to the making of the improvements. 3. SAME-APPRAISEMENT OF PROPERTY. And the appraisement of the property for taxation should not be made until "after" the appraisers have "taken and subscribed an oath to make a true and impartial appraisement." That provision of section 22 of the first-class city act, as amended on March 7, 1883, which provides for setting aside money in the city treasury by an appropriation ordinance, discussed. 5. SAME-SPECIAL TAXES. Where estimates are made by the city engineer for a stone pavement, and a different kind of pavement is constructed, held, that special taxes cannot be levied to raise a fund for the payment for the construction of such pavement. 6. SAME-LOCAL IMPROVEMENTS-SPECIAL TAXES, HOW LEVIED. Special taxes for local improvements must be levied with reference to the special benefits conferred upon the owners of the property taxed; but, as a general rule of apportionment, the taxes may be levied upon the property taxed in proportion to the value thereof, without the improvements thereon. 7. SAME-GRADING-LEVY ON ABUTTING LOT-OWNERS. Special taxes for the grading of alleys cannot, under the statutes, be levied upon the abutting lot-owners, but the grading must be paid for out of the general improvement fund. Error from Shawnee county. This was an action commenced on March 11, 1884, in the district court of Shawnee county, by F. G. Hentig and others, against George T. Gilmore, county clerk, Bradford Miller, county treasurer, and the city of Topeka, to perpetually enjoin the defendants from collecting certain special taxes levied by the city of Topeka upon the lots of the plaintiffs, to pay for grading and paving certain alleys in said city. The action was tried by the court without a jury, and the court made certain special findings of fact and conclusions of law, and rendered judgment upon such findings and conclusions in favor of the defendants and against the plaintiffs for costs, and the plaintiffs, as plaintiffs in error, now bring the case to this court for review. The said findings and conclusions read as follows: First. That the defendant the city of Topeka was, in the years 1881, 1882, and 1883, a duly-organized city of the first class, situated in the county of Shawnee, in the state of Kansas; that the defendant George T. Gilmore was, at the time this action was brought, the county clerk of said Shawnee county, and the defendant Bradford Miller was, at the time this action was brought, and is now, the county treasurer of said county; that said plaintiffs own, respectively, the real estate, situated in said city of Topeka, alleged in the plaintiffs' petition to be respectively owned by them. Second. That prior to the commencement of the paving of the alleys hereinafter mentioned, the mayor and councilmen of the city of Topeka, deeming such work of paving necessary, directed the city engineer to prepare and submit a detailed estimate of the cost and nature and character of the pavement to be used in paving said alleys; that, pursuant to said direction, the said city engineer did, on the twenty-first day of May, 1883, submit to the city council such estimates, which estimates are in words and figures as follows, to-wit: "Estimate of expense for grading and paving alleys between Seventh street and Eighth avenue, and between Kansas avenue and Quincy street, as follows: For excavating 850 yards, at 30 cents per yard, $ 255 00 2,520 00 $2,775 00 "J. HUNTOON, City Eng. "Approved by council, May 21, 1883. "GEO. TAUBER, City Clerk. "Estimate of cost of paving alley running east and west between Fifth street and Sixth street, and between Kansas avenue and Quincy street, viz.: 3,300 feet of paving, at 18 cents per foot, 123 cubic yards excavating, at 25 cents per yard, $594 00 28 75 $622 75 "J. HUNTOON. "The within estimate approved by council, May 7, 1883. "GEORGE TAUBER, City Clerk." And this was the only estimate filed, and the one under which the work was done. Third. That afterwards, to-wit, on the day of 1883, the v.6p,no.4-20 said mayor and city council duly advertised for bids for the construction of said work, and in pursuance of such invitation and advertisement bids were duly submitted to and were accepted by said mayor and city council for the paving of the alleys between Fifth and Sixth streets, and the alleys between Seventh and Eighth streets, and which work and labor was afterwards duly performed by said contractors in accordance with their said contract, and duly accepted by said city. Said contracts were let to the lowest responsible bidders, and the contracts for said works were in writing, each of said contracts being for the specific work provided for in the estimate, and upon which said contract was based. Fourth. That afterwards, and upon the completion of said work, the same was duly accepted by the mayor and city council of said city, and serip or warrants issued to said contractors according to the terms and conditions of said contracts. Fifth. That afterwards, and on the day of September, 1883, for the purpose of paying the cost and expense of doing such work, the mayor and city council of said city of Topeka first caused the lots and pieces of ground abutting on said alleys to be appraised by three disinterested appraisers, duly appointed for that purpose, and did, by ordinance, duly levy and assess according to law the taxes against the lots and pieces of ground abutting on said alleys, to an amount sufficient to pay said cost and expense, but no more; that is to say, upon the lots and pieces of ground abutting on said alleys situated between Seventh and Eighth streets for the full cost of paving the alley in said block; and upon the lots and pieces of ground abutting on said alley between Sixth and Seventh streets for the full cost and expense of said paving in said block; and on the lots and pieces of ground abutting on the alley between Fifth and Sixth streets for the full cost of said paving in said alley in said block; which taxes were duly certified by the clerk of said city to the defendant George, T. Gilmore, as county clerk of Shawnee county, Kansas, and was by him placed upon the tax-roll of said county for collection by defendant Miller, as county treasurer of said Shawnee county. Sixth. That after said appraisement was returned by said appraisers and filed with the city clerk of said city, the mayor and city council caused a notice, of which the following is a copy, to-wit: "OFFICIAL NOTICE. "MAYOR'S OFFICE, CITY OF TOPEKA. "There will be a special meeting of the city council on Monday, September 24, 1883, at 8 o'clock P. M., for the purpose of hearing any complaints that may be made as to the valuation assessed by the appraisers of any lots or pieces of ground abutting on the several alleys upon and along which paving has been done by the city of Topeka, to-wit: In the alley bounded on the north by Fifth street east, by Kansas avenue on the east, by Sixth avenue on the south, and Jackson street on the west. In the alley bounded on the north by Sixth avenue east, on the south by Seventh street, by Kansas avenue on the east, and Jackson street on the west. In the alley bounded on the north by Seventh street, on the east by Quincy street, on the south by Eighth avenue east, on the west by Kansas avenue. "Witness my official hand and seal of the city of Topeka, hereto attached, this twenty-second day of September, 1883. [Signed] "M. HENRY, "Prest. of the Council, Acting Mayor, "Attest: G. TAUBER, City Clerk." -To be published in the official paper of said city, notifying property owners in said city, whose property was subject to taxation and assessment for the payment of said work, that such appraisement and valuation of said property had been made with the view of levying a tax thereon to pay for the paving of said alleys, and that there would be a meeting of said city council on the day of 1883, at which meeting they could appear to show cause why said appraisement and valuation was not just and equitable; and at said meeting, there being no objection made to said appraisement and valuation, said mayor and city council approved and ratified said appraisement and valuation, and by ordinance levied thereon the tax as aforesaid. Seventh. There was no money in the city treasury at the time said work was undertaken, or afterwards, with which to pay for said work, and no money was set apart in the treasury of said city, by ordinance or otherwise, before or at the time said work was undertaken, to pay for the same. Eighth. That the material used in paving said alleys was good, and the work and labor performed was done in a good and workmanlike manner. Ninth. That after the completion of said work, and before the levy of the tax to pay for the same, the mayor and councilmen of said city appointed Albert Parker, M. L. Gage, and A. V. Auter, three resident disinterested householders of said city, to make an appraisement and valuation of said lots and pieces of ground subject to taxation for the payment of such grading and paving of said alleys, who thereupon took and subscribed to an oath and affidavit in words and figures as follows, to-wit: "State of Kansas, County of Shawnee, City of Topeka-ss.: Albert Parker, N. L. Gage, and A. V. Auter, all of lawful age, being first duly sworn, say that each of them are householders of the city of Topeka; that they will faithfully and impartially discharge their duties as appraisers for the purpose of assessing the valuation of lots and pieces of ground abutting on certain alleys in the city of Topeka, Kansas, upon and along which paving has been done by the city of Topeka, regardless of improvements on all such lots and pieces of ground. So help us God. [Signed] "ALBERT PARKER. “Subscribed and sworn to before me this fifth day of September, 1883. [Signed] "GEORGE TAUBER, City Clerk." CONCLUSIONS OF LAW. The court finds as conclusions of law as follows: "First. That the estimates submitted by the city engineer, and approved by the mayor and council, were in substantial conformity with the law, and therefore valid. "Second. That the contracts entered into by the city and the contractors for the grading and paving of said alleys were in substantial conformity with the law, and therefore valid. "Third. That the appraisement and valuation of the property for the purpose of levying a tax thereon for the payment of said grading and paving of said alleys was in substantial compliance with the law, and therefore valid. "Fourth. That the proceedings of the mayor and city council in the assessment and levy of the tax upon said property for the payment of the grading and paving of said alleys was a substantial compliance with the law, and therefore valid and legal. "Fifth. That the plaintiffs are not entitled to the relief prayed for in this action, and judgment will be for the defendants." F. G. Hentig, for plaintiffs in error. J. D. McFarland, A. B. Quinton, and William P. Douthitt, for defendants in error. VALENTINE, J. This was an action commenced on March 11, 1884, in the district court of Shawnee county, by F. G. Hentig and others against George T. Gilmore, county clerk, Bradford Miller, county treasurer, and the city of Topeka, to perpetually enjoin the defendants from collecting certain special taxes levied by the city of Topeka upon the lots of the plaintiffs, to pay for grading and paving certain alleys in said city. The action was tried by the court without a jury, and the court made certain special findings of fact and conclusions of law, and rendered judgment upon such findings and conclusions in favor of the defendants and against the plaintiffs for costs; and the plaintiffs, as plaintiffs in error, now bring the case to this court for review. The plaintiffs claim that the said special taxes are void for the following reasons: (1) That the estimates of the cost of the work made by the city engineer were not under oath; (2) that the said estimates were not made in detail, and were indefinite and uncertain; (3) that the oath taken by the appraisers who appraised the lots for taxation was not in the form prescribed by statute, and was insufficient; (4) that no money was in the city treasury, or set apart or appropriated, for the payment of the work prior to its completion; (5) that the estimates were for a stone pavement, while the material used was asphalt; (6) that the taxes were not levied with any reference to special benefits to the plaintiffs or to their property; (7) that the taxes were levied to pay for grading the alleys as well as for paving the same. We shall consider these matters in their order: 1. It seems from the record that the estimates of the cost of the work were not made under oath. This was wrong. Section 22 of the first-class city act provides, among other things, that "before" any kind of work or improvement shall be commenced, "a detailed estimate of the cost thereof shall be made under oath by the city engineer and submitted to the council." A "detailed estimate," made "under oath," seems to be a condition precedent to the making of special improvements in cities of the first class. In connection with this point see the following authorities: Merritt v. Portchester, 71 N. Y. 309; Thompson v. White, 4 Serg. & R. (Pa.) 135; Cambria Street, 75 Pa. St. 357; Gilmore v. Hentig, 5 PAC. REP. 781. 2. It also appears from the record that the said estimates were not made in detail, but were made in very general terms, and were left very indefinite and uncertain. There were two estimates, according to the findings of the court below: one filed May 21, 1883, for a portion of the work; and the other filed May 7, 1883, for another portion of the work. The first reads as follows: "Estimates of expense for grading and paving alleys between Seventh street and Eighth avenue, and between Kansas avenue and Quincy street as follows: For excavating 850 yards, at 30 cents per yard, $ 255 00 2,520 00 $2,775 00 "J. HUNTOON, City Eng." |