44 Ky. 199 | Ky. Ct. App. | 1844
delivered the opinion of the Court.
These five cases grow out of three several bills filed in the Louisville Chancery Court, to enforce liens given by the charter of Louisville, for securing payment for improving the streets of the city, from the proprietors of lots adjacent to the parts improved. In each of the three cases, the bill was dismissed as against the lot owners, and a decree rendered against the city, and in each case she has appealed from the decree. In two of the cases the complainant also appealed from the decree dismissing his bill against the lot. owners. These two cases were formerly here, on the appeal of the City of Louisville vs Hyatt, &c. and The City of Louisville vs Evans, &c. when the decrees against the city were reverse'd, on the principles and for the reasons stated in the case against Hyatt, &c. reported in 2 B. Monroe, 177; and the cases were remanded for further proceedings and decree according to the principles of the opinion referred to. In that opinion the Court, in conformity with the case of the City of Lexington vs McQuillon’s heirs, (9 Dana, 513,) maintained the constitutionality of the 9th and 10th sections of the charter of Louisville, which grant to the Mayor and Couneilmen authority and power to cause the streets of the city to be graded, paved, and turnpiked at the expense of the adjacent lot holders; and also, that the power of grading as well as that of paving, is qualified by the requisition expressed only in the 9th section, which relates exclusively to paving and turnpiking, that there should either be a petition for the improvement from the owners of the property to be affected, or that it should
Assuming for the present, that these facts were properly brought before the Court in each of the cases, and assuming also, the correctness of the position above stated, as having been decided in the cases of Lexington vs McQuillon’s heirs, and Louisville vs Hyatt, &c. it follows that as the Mayor and Councilmen had not, in the absence of a petition, any authority under the charter, to
But in answer to the two first of these positions, it is to be remarked that any intention, or agreement, or stipulation, on the part of the undertaker, that he would look to the lot owners and not to the city for remuneration, was founded, not upon the understanding that he was to receive no compensation, if the lot owners wore not bound to make it, but on the understanding based upon the acts and representations of the agents of the city, and upon her express undertaking, that such orders had been and would be made by the Mayor and Councilmen, as were effectual to secure it from them. If the mistake on this subject was mutual, it was produced by the assumption on
How this conclusion might be affected by the concession that the Mayor and Councilmen had no authority to bind the city to pay for grading and paving the streets, or to appropriate the general funds, or to levy taxes for that purpose, need not be decided, because we are satisfied that such a concession should not be made. In the case of Keasy vs City of Louisville, (4 Dana, 155,) this Court seems to recognize the power of grading and paving the streets, as an inherent corporate right, even if not granted by charter; and although the corporate authorities would have no power independently of a legislative grant, to raise money by taxation for any purpose, yet as the' streets belong not to individuals, but to the corporation, and the entire local public is interested in and benefitted by their improvement, and the local authorities are res{ ponsible for their condition, there could be no doubt of their power to authorize the work of grading and paving to be done, without an express grant, and there would
We find an example of the co-existence and simultaneous exercise of these two powers in one of the cases before us, in which it appears that although the Mayor and Councilmen are specially authorized to pave the-intersec
The city, therefore, cannot claim exemption from liability on the ground that the Mayor and Councilmen had no power to bind her to raise or appropriate the public revenues of the city for grading and paving. But as they acted under an ordinance passed by a board competent to bind the city, and for an object within their legitimate sphere, and the accomplishment of which must be presumed to have been highly desirable, and perhaps advantageous to the general body of the citizens, since it was opposed by the individuals particularly affected by it, the city should be completely identified' with their action in her name and for her benefit, and responsible for their failures, mistakes, frauds, or default, as private individuals, under like circumstances, would be for similar miscarriages on the part.of their agents: and as the city had, in effect, guarantied the equitable remedy against the lot owners, she was a proper party to the suit for its enforcement, when her power to furnish it, and the efficacy of the acts done by her public agents for that purpose, were brought in question. On this ground, as well as on account of the difficulty which might attend the legal remedy against her, and to avoid the effect of the agreement on which she now relies, that she was not to be looked to for pay, her liability was properly enforcible in this suit.
It is contended, however, that although the two cases of Lexington vs McQuillon’s heirs and Louisville vs Hyatt, are to be regarded, as settling, by the authority of judicial decisions, the constitutionality of the grant of power to grade and pave the streets at the cost of the lot holders, they are not lo be considered as settling, by the same authority, the other two propositions, which have been deduced from them with regard to the identity of the limitations imposed upon that power, both as to grading and paving, and with regard to the extent of the unanimity required, when their exercise is not called for by a petition. But those propositions, though not discussed, are
We do not, however, rest this case exclusively on the ground that these questions have been judicially and authoritatively decided.¡ Upon full examination and consideration of the charter, and the previous laws relating to the subject, and of the nature of the powers granted in the 9th and 10th sections of the’charter, and the policy which dictated the limitations upon that power, we concur in the construction heretofore given to the two sections, and adhere most emphatically to the opinion, that the required unanimity of the Mayor and Councilmen is one of the chief conservative principles of the charter on this sub
Upon the 9th section, which relates exclusively to paving, and which is quoted in the case of Louisville vs Hyatt, (2 B. Monroe,) and substantially in the case of Lexington vs McQuillin’s heirs, (9 Dana,) from the 11th section of the Lexington charter, the only question is as to the extent of the unanimity required. The language is, “Provided, however, that the Mayor and Gouncilmen, by their unanimous consent in council, may cause an.y street, &e. to be paved, &c. at the costs of the owners of lots, See. without a petition, Sic.” The plain import of these words, taken by themselves is, that there must be a unanimous consent of the Mayor and all the Councilmen, given in council, not.out of doors. Our attention is called to the fact, that all grants of power contained in the original charter in which these sections are found, are .made to “the Mayor and Councilmen,” importing that they are referred to by that name as a body, and not as individuals. We have also been referred to the sixth section, which enacts, “that five Councilmen, with the Mayor, or in his absence, six Councilmen (there being at that time ten in all,) shall constitute a quorum to do business, except in cases of levying the taxes, or electing any officer of the city, in which cases eight Councilmen shall be present, and not less than five vote in the affirmative.” And in the same section, it is provided, that the Mayor shall only vote in case of a tie. From all which, it is argued, that the words “by their unanimous consent in Council,” mean by the unanimous consent of the Council, that is, of any quorum which may be assembled, and that the clause gives power to the Mayor and Councilmen, as a body, by the unanimous consent of the Council, constituted for ordinary business, to cause the streets to be paved, &e.
As upon either construction, the consent of the Mayor is. required whenever he is present, the denial of a vote to him in the sixth section except in case of a tie, is alike inconsistent with both, and has no bearing on the question. But the fact, that while on all other subjects, the Mayor has only a casting vote, while on this subject,
Conceding that the Legislature might have conferred upon the Trustees, or upoq the Mayor and Councilmen, acting in an ordinary board, or acting by a concurring majority of all, the power of paving whenever they should think proper, at the expense of the lot owners, it cannot be denied that such a power, subjecting to a greater or less extent the interest and property of a few individuals to the will of a majority, is not only liable to be abused, but offers temptations to abuse such as have never yet failed, sooner or later, to produce flagrant instances of injustice and oppression. And as it should not be presumed that the Legislature has ever been either unaware of this tendency or disposed to countenance it, there should be clear and unequivocal evidence of an intention to grant such a power in order to justify its establishment by inference or construction. Even the acts of 1812 and 1814, the first upon the subject in which the Legislature in effect determines that the Main street of Louisville, between 3d and 6th cross streets shall be paved, at the ex
By usage or by the effect of the act of 1812, and in consequence of the inadequacy of the town revenues, the burden of paving has generally devolved upon the owners of the adjoining lots. The lots may be supposed to be held, subject impliedly, to the burden of paving, when upon a just estimate of public and private interest, it might be properly required. The great difficulty consists in so regulating the power which is to estimate these
The considerations on which this reasoning is founded, and which have been adverted to in general terms only, apply with still greater force to the power of grading at the cost of the local lot owners, than to that of paving. For the danger of abuse and oppression in the exercise of the latter power, arises only from the inequality of the burden, when the same expense of paving is thrown upon a few persons owning lots of comparatively little value, on a section of a street little used, as has been or may be imposed upon the many owners of lots of great value, upon an equal section of a street thickly populated and crowded with business and passengers. But the inequality of burden in grading the streets, consists not only in all of these circumstances, but in this additional one of great importance : that there maybe great difference in the cost of grading the same extent of street, in different parts of the town. And moreover, from the excavations or embankments required in grading particular sections, the access to the adjacent lots may be more or less obstructed, and their value diminished, or foi; a time des. troyed, unless kept up by large expenditures on the part of their owners. If then it be true that by custom and the necessity of the case, the tenure of the town lots is such as to subject the owners to the duty of grading and paving the adjacent streets, when upon comparison of public and private interests, they may be justly required to do so; and if the power of determining when this burden shall be imposed, may be vested in the public au. thorities of the town, the greater degree of hardship and oppression which may be inflicted by an undue exercise of the grading power, would lead us to expect, from the wisdom of a provident and just legislation, a check at least a.s efficient upon that power, as the one which is placed upon the power of paving; and looking to the similarity and connection between the two subjects, it might be supposed a priori,' that little, if any discrimination would be made in the conditions which would be imposed upon two powers so nearly identical in their na
Of these two powers, that of paving was evidently regarded as the principal, and was, therefore, for a long time the only one specially provided for. If the other passed as an incident, it was of course dependent upon it, and subject to the conditions attached to the principal power. But whether it passed by the first grant .or not, it was not necessary, in order to subject it to the same conditions to which the principal power was subjected, that they should be expressly imposed in the subsequent special grant. It is sufficient that it was granted as a subordinate, incidental, and dependent power, to be attached to and exercised with, or as a part of the princi
How stands the question then, upon the act of incorporation of 1828? In that act, as in the previous legislation, the case of paving is first provided for. The 9th section, which is quoted in Louisville vs Hyatt, (2 B. Monroe,) grants and regulates the power of paving and turnpiking, and makes detailed provisions for the assessment and collection of the cost. After which, the 10th section proceeds immidiately to enact, “that when any street in any square shall have been paved or turnpiked, the Mayor and Councilmen shall have power to cause the side-walks to be paved with stone or brick, and to apportion the cost and expenses on the owners of lots, &c. and a lien is given for the same; and the Mayor and Councilmen shall have like authority and power to‘cause the streets and alleys to be filled, levelled and graduated for the purpose of carrying off the water, or preparatory to paving or turnpiking, at the cost and expense of the lot owners, for which it gives a lien, and provides for collection by reference to “the previous section.”
Did the Legislature- intend, in enacting this clause, to continue the powers of grading and paving, in the same relation of dependence of the former upon the latter, which previously existed, modifying alike the conditions on which each might be exercised, or was it intended to relieve the power of grading at the cost of individuals, the most dangerous of the two, from all previous restrictions, and to vest it as an absolute and independent power of imposing this burthen upon the sectional minorities in the will of a bare majority of a quorum, or even of a bare majority of all the Councilmen ? Waiving a re. ference to those general considerations which might be brought into view in answering this question, and confining ourselves to the face of the charter, it is to be re
We are thus carried, even by the rule which has been relied on as fixing the reference, through the last antecedent, and by means of it, back to the first antecedent, which is the power of paving the streets as defined in the 9th section; and the certainty thus produced, that the grading power was intended to be subordinate to, and dependent on that of paving, as defined in the 9th section, renders it almost certain that the word “like” was intended and understood to refer directly to that power, and thus to fix upon the grading power at once, and withoutthe necessity of any subtle analy
It remains only to say, that in the case of Mitchell against Rogers, &c. the insufficiency of the city ordinances relied on by the complainant, having been set up in the, answer regularly filed, and being proved, there is no room to question the right of- the defendants in that case to have all the benefit which can arise from the insufficiency and illegality of the orders in that case. In the case of Hyatt, &c. vs Stokes, &c. this matter was not regularly set up until after the return of the case from this Court to the Court of Chancery, when the defendants answered a bill of revivor, rendered necessary by the death of the complainant, Hyatt; and as the copies of the ordinances filed by the complainant and relied on as the basis of his remedy, had been so certified by the city officers, as to furnish prima facie evidence that they had been legally passed by competent authoriiy, we think neither
We conclude by saying, that we have duly considered the suggestion that the affirmance of these decrees may do injustice by taking from these lot owners and throwing upon the city at large, a burden such as other lot owners have been and will be obliged to bear in grading and paving the streets in their respective squares. But we find no basis laid in the case, nor are we satisfied that there could be one, for avoiding such a consequence. The claim is attempted to be enforced solely on the authority of the incompetent ordinances of the city Council. No case has been made out in which the Court can say, if indeed it would have a right to judge, that the grading and paving which were done, ought, on the principles which have been staled, to have been done, when they were ordered, or ought even now to be ordered at the cost of the lot owners, if they remained undone; they are not shown to have been required by the public necessities, nor by the interest of the lot owners; nor is any distinct advantage shown to have resulted to them from the work done. On the contrary, in some of the cases the work would seem not to have been essential to the public convenience, while it was actually injurious to the
adjacent lots, and from the depth of the excavations,, would have imposed an extraordinary expense upon the: lot owners, had the cost been coercible from them.
Wherefore, the decree is affirmed in each of the cases.