115 Ky. 334 | Ky. Ct. App. | 1903
Opinion of the court by
affirming in part AND REVERSING IN PART.
By an ordinance approved August 22, 1898, the general council of the city of Louisville provided for the improvement of the carriage way of Chestnut street from Thirty-
In Barber Asphalt Paving Co. v. Gaar et al., the contractor complains of that portion of the judgment denying it relief against the property lying between Fortieth street and Shawnee avenue. In City of Louisville v. Barber Asphalt Paving Co. the city complains of so much of the judgment as makes it liable for this part of the improvement. In Cornelius Walsh at al. v. Barber Asphalt Co. the owners
The last two appeals are prosecuted separately, as two separate actions were brought in the circuit court, and the questions made are not identical in some respects. For convenience all the appeals will be considered together. The -city of Louisville purchased Shawnee Park something over ten years ago. At that time it lay without the city limits, but in the year 1894 the city limits were extended, so as to-take in the park. This was done by taking into the city a narrow tongue of land 460 feet in width and something over a mile long, extending from a line 200 feet west of Thirty-fourth street to Shawnee avenue. Sixty feet of this strip throughout its entire length was taken up by Chestnut street, leaving a strip 200 feet wide on each side of it. This extension of the city limits appears to have been made without protest on the part of the property owners. After the territory was taken into the city, the county authorities ceased to keep the roadway in order, and, there being considerable travel on it, it got in very bad repair in the four years elapsing after it was taken into the city before the improvement was ordered. Some of the property owners were active in procuring the council to order the improvement, others were silent, and some held a meeting and protested, but they took no active steps to prevent the improvement being made as directed in the ordinances. The first of the ordinances under which the work Was done is in these words:
“Be it ordained by the general council of the city of*347 Louisville: That the carriage-way of Chestnut street from the center line of Thirty-first street to'the center line of Thirty-fourth street extended from the north, shall be thirty-six (36) feet in width, and shall be improved by grading, curbing and paving with the asphalt pavement, with corner stones at the intersections of streets and alleys. Said work shall be done in accordance with the plans and specifications on file in the office of the board of public works and at the cost of owners of ground on' the south side of Chestnut! street from Thirty-first street to the center line of Thirty-fourth street extended from the north and extending back to a line 171 feet distant from and parallel to Chestnut street, and on the north side of Chestnut street from Thirty-first street to Thirty-fourth street as provided by law. The cost to be equally apportioned among the owners of property according to the number of square feet of ground owned by the parties respectively within the limits as above set out, and that all ordinances in conflict herewith be and are hereby repealed.”
The other ordinance is similar, except that after providing for the improvement, it is as follows:
“Said work shall be done in accordance with the plans and specifications on file in the office of the board of public works and'at the cost of owners of ground on the north side of Chestnut street from the center line of Thirty-fourth street to a line at right angles to Chestnut street, passing through a point where the center line of Shawnee avenue extended from the south intersects the center line of Chestnut street and extending back to a line 171 feet distant from and parallel to Chestnut street and on the south side of Chestnut street from the center line of Thirty-fourth street extended from the north to á line at right angles to Chestnut street, passing through a point where the center*348 line of Shawnee avenue extended from the south intersects the center line of Chestnut street and extending back to a line 171 feet distant from and parallel to Chestnut street. The cost to be equally apportioned among the owners of property according to the number of square feet of ground owned by the parties respectively within the limits above set out, and that all ordinances in conflict herewith be and are hereby repealed.”
At the time the ordinances were passed there were general specifications, which had been printed, on file in the office of the board of public works, but the contract was not made according to these specifications. The board, according to its custom, prepared, after the ordinances were passed, plans and specifications for the work, and the contract was made thereunder. By section 4 of the .specifications the guttering was to be made of flagstones. After the contract was let, the board of public works, by a written contract with the contractor, changed this, and allowed the guttering to be made of asphalt. By section 22! of the specifications the contractor was required to erect a permanent plant in the city limits, which should remain there during the time of the guaranty period — five years. The specifications were in the alternative for either asphalt pavement No. 1 or asphalt pavement No. 2. The advertisements were so made. Bids were received on both classes of pavement, and the board accepted the bid for pavement No. 1. The difference between No. 1 and No. 2 consists in the thickness of the pavement, No. 1 being thicker, and costing something over $2 more per square of 100 feet than No. 2. The specifications also called for a binder course underneath the asphalt or surface pavement. Madison street runs parallel with Chestnut and 340 feet from it on the north. Magazine street runs parallel with Chest
It is insisted for the property owners that the proceedings are void, and created no lien upon the property for the following reasons: (1) Because the contract was not made in accordance with the general specifications in existence when the ordinances were passed, and a discretion as to the amount and the cost of the work to be done was left by the lawmaking body to an executive board. (2) Because the material for part of the work was unlawfully changed from that required by the ordinance and contract, and something else was received in place of it. (3) Because both the ordinance and the specifications tended toward stifling competition, and imposed on the lot owners burdens which they ought not to bear. (4) The burden was thrown on the property extending back from the street 171 feet, and not 210 feet or half way to Magazine street on the south from Thirty-first to Thirty-fourth street, and west of Thirty-fourth street to Shawnee avenu'e the burden was thrown on the property running back 171 feet from the street on both sides, while the city boundary along here extended out 200 feet from the street, and thus 29 feet of land within the city boundary was exempted from the burden. (5) The territory contiguous to Ghestnut street from Thirty-fourth street to Shawnee avenue was not defined into squares by principal streets, and there existed no authority in the
If the board had made plans and specifications for only asphalt pavement No. 1, and had advertised only for bids on this, it could not be maintained, under the rule laid down in the case referred to, that the contract was invalid. The fact that it advertised for alternative bids: on pavement No. 1 and on one that was thinner, but rejected the bid for the thinner pavement, is of no more effect on the contract than if they had advertised alone for bids on the thicker pavement. The council having simply directed
The ordinance requiring the payment of a license fee by contractors was held unconstitutional by this court. Being unconstitutional, it was a nullity. From a nullity no rights can arise, and by it no rights are affected. The ordinance being void, the contractors had a right .to ignore it. They could not be required to pay anything under it, and, if they did pay anything they were entitled to recover it on demand. We are unable to see, therefore, that there was anything in the ordinance or specifications looking toward stifling competition, or imposing on the lot owners burdens] which they ought not to'bear.
On the appeals in Barber Asphalt Company v. Gaar and of City of Louisville v. Barber Asphalt Company, the judgment is reversed, and cause remanded, with directions to enter a judgment as above indicated. On the appeals in Cornelius Walsh v. Barber Asphalt Company and Mary H. Raffo v. Barber Asphalt Company the judgment is affirmed.
Petitions for rehearing overruled.