— At that part of Ninth street named in the contract and specifications for grading May street, there was a gulch or hollow, from forty to sixty feet in depth.. May street is near Ninth, but from the formation of the earth in that vicinity, to bring these streets to grade, it required excavation on May and filling in on Ninth. The result of the fulfillment of the contract was, that both streets were brought to grade at the expense of one. ' The charter of the city provides that: “The cost of grading any street * * * shall be charged as a special tax on all property on both sides of said street * * * graded,” etc. To grade means, of course, to bring to grade, either by means of a fill or a cut. It is a fundamental rule that “a local assessment or tax for a local benefit should be distributed among and imposed upon all equally standing in like relation.” Under the charter of the City of Kansas and the familiar rule governing local assessm ents, it is quite evident and apparent that one street cannot, by ordinance or contract, be graded at the expense of the property holders of another. The suggestions made in favor of the legality of these proceedings are that the work done in Ninth by filling and leveling- it, its full width, to grade did not enhance the cost of the work on May street; that the dirt taken from May might as well be deposited in the hollow on Ninth, as at any other point. In other words, and it is the strongest suggestion to be made in favor of plaintiff’s case, the fill on Ninth street was a mere incident to the excavation on May; and while it may benefit Ninth, it is a natural result which often follows a public improvement. But, to my mind, the fact is, that the filling of Ninth street is not the mere *496incident resulting from the excavating of May. It is a part of the contract upon which this tax bill is founded, that the contractor shall grade Ninth street according to specifications, to its full width. And so if the work or grading on Ninth street had not been done as required by the contract and specifications the contractor would not have been entitled to this tax bill. One cannot close his eyes on the fact that the contract in this case bound the contractor to grade both streets, one by a cut an,d the other by a fill. Both were by the contract to be brought to the established grade, one by cutting down and the other by filling up. If he failed to do either, he failed in the performance necessary to entitle him to the tax bill. Suppose this matter had been the other way, and instead of an ordinance to improve May street, it had been to improve Ninth, and the contract had been that the contractor should gét the earth necessary to make the fill on Ninth'by excavating May its full width to grade; would it be right or just that the full cost of grading both streets should be put upon Ninth ? If the filling of Ninth street had been the mere incident to the work on May, the case would be wholly unlike this. In this case, as I have said, the contract is to bring both streets to grade at the expense of one. The argument that the work on Ninth has not added to the cost of grading May amounts to simply this: that as it would cost the. property-holders on May as much to grade their street alone as it would to grade both it and Ninth, therefore they shall be compelled to grade Ninth. If the argument be based on fact, it results from the natural lay of the earth at these points, and certainly both streets are entitled to share in this natural advantage when both are improved under the same contract.
Sections 30 and 31 of chapter 31 of the general ordinances of Kansas City were introduced in evidence, section 30, by plaintiffs and 31 by defendants, but these, separately or together, cannot be interpreted to overthrow the principle I have stated in a case of this character.
*497The judgment, with the concurrence of the other judges, is affirmed.