73 Ky. 696 | Ky. Ct. App. | 1874
Lead Opinion
delivered the opinion oe the court.
Having improved a portion of a new street in Louisville, called East Broadway, under a contract made with the mayor and approved by the General Council, the appellees brought this suit in the Louisville Chancery Court against the appellant Craycraft, who owns ground on each side of the street, to recover that part of the contract price of the work done by them which was apportioned by the city council as Craycraft’s portion of the cost of the improvement. They made the city a defendant, and prayed for judgment against it in the event they were from any cause unable to recover against Craycraft.
Craycraft’s ground on the west side of the street constitutes part of a square, and is liable to assessment for street improvements, under section 12 of the city charter; but his ground on the east side of the street has not been defined into a square, and in order to subject it to assessment it was necessary that
Having ascertained that the ground east of the street could not be legally assessed, the vice-chancellor referred the cause to the city engineer as a special commissioner to ascertain how much of the entire amount of the assessment against Craycraft was legally chargeable upon his property west of the street; and upon the coming in of the report of the engineer judgment was rendered against Craycraft for the amount so ascertained, and against the city for the residue; and from that judgment both Craycraft and the city have appealed.
Section 5 of article 7 of the charter of 1851, which was in force when the present charter was passed, required that in suits to enforce liens for street improvements all persons liable under the same contract should be made parties, unless they had previously paid their proportions of the cost, and the plaintiff was required to allege that all persons liable who were not made parties had paid their shares of the assessment. This allegation was held to be necessary to show a cause of action on the contract; and as no such allegation is contained in the petition in this case, its sufficiency must depend on the question whether the foregoing provision of the charter of 1851 is still in force.
The present charter provides that “all laws and parts of laws having special application to the city of Louisville, so far as the same are in conflict with this charter, are hereby
If the charter, instead of the ordinance, had required the work to be contracted for by squares, and that part of the street embraced in appellees’ contract does not constitute a square, the position taken by counsel would be maintainable.
The charter provides that “street improvements shall be made at the exclusive cost of the owners of lots in each fourth of a square, to be equally apportioned according to the number of square feet owned by them respectively;” and it also provides that “no error in the proceedings of the General Council shall exempt from payment after the work has been done as required by ordinance or by contract; but the General Council or the courts in which suits may be pending shall make all corrections, rules, and orders to do justice to all the parties.”
The work was done in this instance according to both
The engineer made a report in accordance with the directions of this order, and no exceptions having been filed, it was made the basis of the judgment rendered.
The court having authority to correct the error of the council in making the assessment, limited only by the requirement that it should be done in such way as to do justice to all parties, and there being no complaint that the proportion assessed by the court does injustice to Craycraft, except on the ground that he ought not to have been made liable for any thing, we can not decide that injustice was done him. If the proportion of the entire cost assessed against him was too large, that fact should have been suggested to the court below by exception to the report of the engineer, and no such exception having been taken, we must assume that no objection based on this ground existed, and therefore that the apportionment was just, if as matter of law Craycraft was liable for any thing.
This point does not arise in this case unless it shall turn out that the correctness of the judgment against the city depends upon the question whether Crayoraft is liable for the whole cost of the improvement.
In those cases it was said that the provision of the charter under consideration only applies where the city had authority by proper proceedings to cause the improvement to be made a1 the exclusive cost of the owners of adjacent property.
It is said, however, that this construction is inconsistent with the decision of this court in Louisville v. Nevin (ante, 549). In that case it appeared that the city had by a valid contract, made under a valid ordinance, caused the sidewalk on the south side of Jefferson Street to be paved. A part of the paving was done in front of a graveyard, and we held that the graveyard lot could not be sold, and that the city was liable to the contractor. That decision rested on the ground that the General Council had express authority under the charter to improve all the streets in the city, and that, as it could not by any legal means make the improvement in front of the graveyard a charge upon it, there was implied authority, resulting from the express authority to improve the streets, to' make such improvements at the cost of the city. Such a construction was necessary in order to give effect to every part of the charter. When, by taking the proper steps, the General Council could have made the improvement at the cost of the owners of adjacent property, its power to improve the streets may be executed in that way, and the city can in no event be made
But if we hold, as we are asked to do in this case, that the mere omission of the General Council, in cases where it had power to do so, to take the steps necessary to make an improvement a charge on the owners of adjacent property will render the city liable, then no effect whatever can be given to the provision supra of the charter; and therefore, in order to give that provision some effect, we are compelled to hold that whenever the General Council has power by proper proceedings to improve a public way at the cost of the owners of adjacent property, it has no power, either by affirmative action or by neglecting to take proper steps to render such owners liable, to make the city responsible to the contractor.
But it is insisted that this is inconsistent with former decisions of this court, and several cases are cited to prove it. We do not hesitate to admit that the cases of the City of Louisville v. Hyatt (5 B. Mon. 200), Guthrie v. The City of Louisville (6 B. Mon. 575), Kearney v. The City of Covington (1 Met. 345), and Murphy v. The City of Louisville (9 Bush, p. 189), and perhaps some others, when considered without reference to the provisions of the charters under which the litigation in those cases arose, seem to be in conflict with the decision in this case. None of the charters of Louisville prior to the present one contained any provision declaring, in terms or in effect, that the city should not be made liable for the cost of street improvements. They prescribed the manner in which such improvements should be made at the cost of the owners of adjacent property, but as to what should be the
The same rule was announced in a case arising under the charter of Covington. (1. Met. 345.) In that case it was argued for the city that the charter limited the power of the city council in such a way that it had no power to bind the city to pay for the original construction of streets. The court decided, as it had previously done in reference to the same provision, that there was nothing in the charter which expressly or by implication restricted the right of the council to improve the streets at the cost of the city, and then proceeded to decide that, the city council having made a contract for the improvement of a street, and failed to take the steps necessary to bind the owners of adjacent property to pay for the work, the city was liable.
Following the doctrine of those cases, this court in the case of Murphy v. The City of Louisville (9 Bush, 189) used language which counsel suppose to be in direct conflict with the view we have taken.
That case did not arise under the present charter, and the only question involved in it was whether a contract had- been made with the city which under the old charter bound it to pay for the work. It was clear that if a valid contract had been made with Murphy by the city council, he was entitled to recover against the city, because, there being no provision declaring that the city should not be made liable, the case would have fallen directly within the rule laid down in Hyatt’s and Guthrie’s cases, and in the case of Kearney. And in arguing the question whether, the city was liable this court
The supposed contract under which the appellant claimed was entered into under the old charter, which contained no provision that the city should not be made liable; and undoubtedly, if the contract had been valid, and the owners of the adjacent property had escaped liability through some default of the city authorities, the city would have been liable. But there is enough in that opinion to show that the court then recognized the principle upon which we have decided this case.
We then quoted with approval Zottman v. San Francisco (20 Cal. 96) and Brady v. The Mayor of New York (16 How. 432). In the former case Mr. Justice Field said “that a party dealing in a matter expressly provided for in the charter is bound to see to it that the charter is complied with. If he choose to take the hazard or neglect this, he is a mere volunteer, and must suffer.” In the latter case the court said “ that persons dealing with a corporation, the mode of whose action is limited by the charter, must take notice of these restrictions, and see to it that the contract is made in the manner authorized by the charter.”
In the case of Swift v. Williamsburg (12 Barb. 427) it appeared that the common council had power to open and improve streets only upon petition signed by one third of the persons owning land within the limits of the district to be assessed for the cost. A party entered into a contract with
The principle deducible from these cases is that persons dealing with a municipal corporation are bound at their peril to know that the contracts made by the officials of such corporation are made in the mode pointed out by the charter and ordinances; and if they fail, they must suffer the consequences. How much more then the necessity for holding that they shall know, at their peril, that those things have been done which are required to be done in order to make the owners of adjacent property liable for the cost of the work, when they were bound to know that if the city council had power to charge the cost of the work upon the property benefited by it, they had no power to make a contract under which the city could be made liable.
But it is said the General Council was the general agent of the city, and that, inasmuch as it had power to contract for the work, the city is liable, although the agent transcended its powers. We do not so understand the law of agency. We have already seen that those contracting with the city council were bound to take notice of limitations, not only upon its power, but also as to the mode of contracting; and we must
Nor can the city be held liable on the ground that the appellees may not have known that no such ordinance or resolution had been passed as would render Crayeraft’s adjacent property liable, or that his ground had not been defined into a square. They had the means of knowing what the facts were, and upon the principle of the cases cited supra, and especially the cases of Swift v. Williamsburg and Murphy v. Louisville, they were bound to learn them.
The city can not be held liable on the ground that the appellees have expended their labor and money on a street which is now being used by its people. This point was fully considered in Murphy’s ease, and we can not improve upon the argument there made. We are aware that this decision seems harsh, but we have only one alternative: we must either decide that a whole clause of the city charter is nugatory and refuse to give it any effect whatever, or we must hold that, having power by proper proceedings to make the improvement at the exclusive cost of the owners of adjacent property, the General Council could not bind the city to pay for it.
If. whenever the General Council fails to take the steps necessary to bind the owners of adjacent property the city is to be made liable for the cost of improvements for which such owners might have been compelled to pay, then we have the anomalous result that, although we have in the new charter an important clause not in the old one, indicating a clear intention to change the law, the law is in fact not changed at all. A construction producing such a result can not be the true one.
Wherefore the judgment against Craycraft is affirmed, and the judgment against the city of Louisville is reversed, and the cause is remanded with instructions to dismiss the petition as to the city.
Rehearing
To THE PETITIONS OF COUNSEL OF APPELLANTS AND APPELLEES FOR A REHEARING
DELIVERED THE FOLLOWING RESPONSE OF THE COURT:
After a careful reconsideration of the case so far as the appellant Craycraft is concerned we see no reasons for changing the opinion originally announced.
We do not decide, as counsel seem to understand, that all of section 5 of the old charter is repealed. We only decide that, inasmuch as the new charter provides for suits to enforce liens for improvements, and does not prescribe the mode of procedure, the legislature intended to leave the mode to be regulated by the general laws applicable to other cases for the enforcement of liens.
It is true that there is no provision in the Code providing for the collection of taxes by suit in equity, and it is likewise •true that there is no such provision in regard to any particular class of liens; but the'Courts of equity have jurisdiction of such cases under general rules applicable alike to all. The
We did not decide that that part of the section which gives to the defendants in such cases a right to redeem property sold to satisfy liens for street improvements was repealed, nor do we regard that question as in any wise affected by the decision made.
We have carefully reconsidered the case on its merits; and, being unable to discover that we have erred, the petitions for a rehearing are overruled.