
    John S. Wilkin, as Treasurer of Cowley County, et al., v. Emily J. Houston et al.
    
    Jubisdiction Over Sidewalks. In a city of the second class, no petition is necessary to give the council thereof jurisdiction over sidewalks, for the purpose of repairing or reconstructing the same.
    
      Error from Cowley District Court.
    
    The opinion states the case.
    
      Eaton, Pollock & Love, for John S. Wilkin, as county treasurer; W. T. Madden, city attorney, for City of Winfield.
    
      Fink & White, for defendants in error.
   Opinion by

Strang, C.:

This was a proceeding by injunction to restrain the collection of a sidewalk tax, or assessment, against lot 12, in block 129, Winfield, Cowley county, Kansas. A restraining order was first allowed by the probate judge. Afterward in the district court a temporary injunction was allowed. An answer was then filed, and the case went to final trial, resulting in a judgment of the court perpetuating the injunction. The judgment of the court perpetuating the injunction was based solely upon the fact, a3 found by the court, that no legal petition for repairing, widening and reconstructing the sidewalk in question was ever presented to the council requesting such improvement. Upon all the other questions the court found in favor of the defendants below, except upon the question-of the necessity of the- improvement, and upon that question the court refused to pass. But, as plaintiffs below are not here complaining of such refusal, no question is raised thereon. The first question raised by the assignment of errors js, did the court err in holding that the presentation of a petition requesting the improvement was necessary, to give the council jurisdiction over the sidewalk, so as to enable it to repair, widen or reconstruct the same?

The statute, the last clause of ¶ 832, General Statutes of 1889, which was in force when the proceedings to improve said sidewalk were instituted by the council of said city,-provides that “no formality whatever shall be required to authorize the repairing of sidewalks, or the reconstruction of such sidewalks as are, in the judgment of the council, worn out and unfit for repair, and making assessments therefor.” Under this provision, no petition was necessary to give the council jurisdiction over said sidewalk for the purpose of repairing the same, nor for the purpose of reconstructing it, when, in the judgment of the council, it became worn out and unfit for repair. It follows, then, that whether the improvement of said sidewalk is treated as a repairing of an old walk, or the reconstruction of one so worn out as to be unfit for repair, no petition was necessary to give the council jurisdiction to make the improvement. No petition is necessary in any event to give the council jurisdiction over sidewalks in cities of the second class, the class to which Winfield belongs, except in the construction of sidewalks.

The provision which requires a petition to give the council jurisdiction over the construction of sidewalks, construed in connection with the provision quoted, which follows it in the same section, must be held to mean that a petition is only necessary to give the council jurisdiction over a sidewalk in a city of the second class in case of an original building of a sidewalk — that is, the building of a sidewalk where none has before existed. Of course, if no petition was necessary to give the council jurisdiction to repair or reconstruct the sidewalk in question, then the fact that a petition was presented that was not a lawful petition would afford no ground upon which to maintain the injunction.

The want of a lawful petition being the ground upon which the district court perpetuated the injunction, our view of the matter renders it unnecessary for us to look into any of the other errors assigned, as the case must be reversed upon that ground. We recommend that the judgment of the district court be reversed, and remanded for further proceedings.

By the Court: It is so ordered.

All the Justices concurring.  