67 Ky. 464 | Ky. Ct. App. | 1868
delivered the opinion oe the court:
Section 4 of the amended charter of Louisville, approved June 2, 1865 (2d vol. Sess. Acts, 1865, p. 506), repealed section 3, article 7, city charter of 1851, and provides, in place thereof, that “ hereafter said general council may pass ordinances to procure the grading, paving, curbing, and furnishing with metal gutters, or regrading, repaving, recurbing, and furnishing with metal gutters, the whole or any portion, in width or length, of the sidewalks on any square or squares, or portions of a square, within the city limits, or such one or more of said modes of improvement thereof as the said council may direct or authorize to be done, and at the cost of the owner of property fronting on such side-walks, and tobe apportioned according to the amount actually done in front of such property, or parts of property ; and for such costs a lien is hereby created against such property or parts of property: Provided, That the general council shall have no power to subject such property-holder to the cost or expense of any repaving or recurbing, unless such work is necessary on account of the worn out or bad condition of the curbing or paving: Provided, That when the city changes the grade of any street, alley, sidewalk, or curbing, that has
The city council, under authority of this section, as they supposed, enacted the following ordinance: “An ordinance to grade and pave the sidewalks on the west side of Fulton street, Portland, between Market street and Water street, or such portion of said sidewalks as the city engineer may direct.
“Be it ordained by the General Council of the City of Louisville, That the sidewalks on the west side of Fulton street, between Market street and Water street, or such portions of said sidewalks as the city engineer may direct, be graded and paved at the costs of the owners of property binding thereon; said work to be done subject to the supervision and control of the city engineer, and in accordance with specifications to be furnished by him,” fyc. The mayor and engineer did let out this work, and the undertaker, Norwood, entered into bond, stipulating that he “ will grade and pave the sidewalk on the west side of Fulton street, Portland, between Market and Water streets, or such portions of said sidewalk as may be directed by the city engineer to be graded and paved by ordinance passed by the general council of said city,” fyc., dated May 14, 1867. Said ordinance was passed November 1, 1866.
The general council having received the work after being done, apportioned to appellee three hundred and twenty-seven dollars and fifty-four cents of the costs thereof; and he having refused to pay it, appellants brought this suit, setting out said ordinance, the contract and future proceedings of the council, and ask judgment to sell his property; but which the court dismissed upon demurrer, because of the defect in the ordinance, and from which this appeal is prosecuted.
The two branches of the city council alone can determine the necessity of the improvement, as well as its kind and character, and this upon a call of ayes and nays. Nowhere in the original charter or the amendments is there any authority to refer to any other body or person the determination of these things; because, as recently held by the Supreme Court of Missouri, in Ruggies & Bexter vs. S. A. Collier, this power to pass ordinances for improving streets, &c., is legislative, and cannot be delegated. It is also in effect a power of taxation, which is the exercise of sovereign authority, and nothing but the most explicit language can justify a court in holding that the Legislature intended to confer such vast power over the citizens’ property upon the mere discretion of any single officer,
The property-owners are not only interested in the improvements, but also in the kind and character thereof, including the grade and materials and width of pavement, &c.; therefore, they have the legal right to have these things passed on by the city legislature, the members of which are responsible to their constituency for all measures of oppression or neglect.
Pavement signifies to floor with stone, brick, or other hard substance, involving great difference of price as well as durability, and requiring the exercise of sound judgment to determine the economy of the one rather than the other, as the lowest in price might be the dearest to the owner, because of its want of durability. So> one grade might be proper and economical, whilst another would be injurious and wasteful.
The determination of all these matters has wisely been confided by the Legislature to the city council and not the engineer. The amount of the improvement, as well as its kind and character, must be ascertained before it is done. We perceive no reason why it is not quite as convenient to ascertain these facts before as after the ordinance ; but were it not so, the law and prudence and safety to the property-owner requires that it should be so. It is the exercise of a vast power over the rights and property of the citizen, and whilst necessary to the growth and convenience and commerce of the population of a large city and the public generally, yet such power should be exercised as the law directs, and strictly confined within legal limits.
It is as imperative on the council to ascertain what portion of a square needs improvement, when all does not need it, as it is to ascertain when a whole square needs it, and also as imperative to fix the character and quality of the work to be done on a part, as the whole of a square. We do not say that when a portion or all of a square needs improvement, and the council has ascertained these facts, and designated the grade and
If the report of the engineer in fixing the grade, designating the portion, and recommending the kind of pavement to the council, should be injurious or oppressive to the property-holder, he would have the right to present his objections to the council before its final determination, and defeat the enactment of the ordinance; and though he may often not be informed even of these, and therefore lose the opportunity to be heard, yet this only the more clearly shows that the council should certainly know what kind of improvements are to be made, as otherwise the property-holder would lose both the right to protect himself in person or by his representative in the council; hence it should be the more clearly informed before he is bound. As said by the city engineer in his able report of 1868, the nearer a strict cash system of compensation for public works can be approached, the more economical it will be; of course the more speedy the recovery, the more summary the remedy, and the fewer the obstructions and hazard to the contractor, the cheaper and more economical it will be to the taxpayer and property-owner.
However specious may be the arguments as to the interest of the individual owners in the enlarged and unauthorized discretion thus conferred upon the engi
Wherefore, the judgment is affirmed