City of Henderson v. Lambert

• Decision Date: 22 May 1878
• Parties: City of Henderson v. Lambert.
• Court: Kentucky Court of Appeals

77 Ky. 24

City of Henderson v. Lambert.

Court of Appeals of Kentucky.

May 22, 1878

APPEAL FROM HENDERSON COMMON PLEAS COURT.

VANCE &amp MERRIT AND TURNER & TURNER FOR APPELLANT.

1. The cost of the improvement was assessed against the property fronting on the street in pursuance of art. 3, secs. 8, 14 of the city charter of 1867, and sec. 16 of the amendment thereto of 1870.

2. Appellant's obligation as abutting lot-owner to pay for the improvement of the street was not affected by the location and use of the railroad in the street. (Railroad Co v. Applegate, 8 Dana, 289 ; Railroad Co. v Brown, 17 B. Mon. 763; Cosby v. Railroad Co., 10 Bush, 291; E., L. & Big Sandy Railroad Co. v. Combs, 10 Bush, 384; Howell v. Bristol, 8 Bush, 495; City of Lexington v. McQuillan's heirs, 9 Dana, 514; City of Louisville v. Hyatt, 2 B. Mon. 177; 8 Bush, 511-517; Louisville v. Rolling Mill Company, 3 Bush, 424; Keasy v. Louisville, 4 Dana. 155.)

3. The acceptance of the work by the council is conclusive as to the manner of its execution. (Murray v. Tucker, 10 Bush, 241; Preston v. Roberts, 12 Bush, 570.)

4. The publication of the ordinance was sufficient. (Dillon's Mun. Cor., pp. 265-269.) It was not necessary that the report of the committee upon the grade of the street should be published.

5. Charges apportioned against property for street improvements are not a tax in the sense of that term as used in sec.--of the charter. (Johnston v. Louisville, 11 Bush, 532; Matter of Mayor of N. Y., 11 John. 79.)

6. " No error of the proceedings of the common council shall exempt from payment after the work has been done," etc. (See Caldwell v. Rupert, 10 Bush, 183; Broadway Baptist Church v. McAtee, & c., 8 Bush, 510.)

Ordinances providing for street improvements are not void because the council fails to follow strictly its delegated powers. (Sedgwick on Stat. & Con. Law, p. 466; Kniper v. City of Louisville, 7 Bush, 599.)

When the city is bound the lot-owner is also bound. This is expressly provided by the charter.

MALCOLM YEAMAN FOR APPELLEE.

A municipal corporation, by proceedings not conforming in letter or spirit to its charter, can not assess against the owners of property abutting on a street the cost of an improvement which was done against the protest of the owner, was not done in conformity to the contract, and so badly done as to be utterly worthless, and could not, even if well done, have benefited the property. (Preston v. Roberts, 12 Bush, 575; Hellow v. Bristol, 8 Bush, 499; Hamett v. Philadelphia, 2 Am. Rep. 617; Lexington v. McQuillan's heirs, 9 Dana, 523; Mayor, & c. v. State, Am. Law Reg., July, 1874, p. 441; Washington Avenue Case, 8 Am. Rep. 260; Weber v. Rembold, 13 Am. Rep. 748; Hydes, & c. v. Joyes, & c., 4 Bush, 466; Murray v. Tucker, 10 Bush, 242; Crist v. Brashiers, 3 Mar. 171; Craycraft v. Selvage, 10 Bush, 698; Broadway Baptist Church v. McAtee, & c., 8 Bush, 511; Caldwell v. Rupert, 10 Bush, 183; Charter of 1870 city of Louisville, sec. 12; Charter city of Henderson, secs. 8, 12, 16; Dillon's Mun. Cor., sec. 265.)

OPINION

COFER JUDGE:

The charter of the city of Henderson provides that the improvement of public ways in said city shall be made and done, as may be prescribed by ordinance, at the exclusive cost of the owners of lots fronting or binding on the way improved, according to the number of feet owned by them respectively.

The common council provided by ordinance for the improvement of Fourth or Railroad Street in said city, and entered into contract with John Haffy to furnish the material and do the whole work, including grading, guttering, curbing, and graveling the carriageway, according to certain specifications contained in the ordinance and contract, at a specified rate per lineal foot, except the grading, which was to be paid for by the cubic yard.

The whole work was to be completed by March 1, 1872, and to be paid for by the city within thirty days after its completion, and the contract stipulated that in case of the failure of the contractor to complete the work by the time agreed upon, a deduction at the rate of ten dollars per day should be made for each day of the continuance of such failure.

The work having been paid for by the city, was received long after the time stipulated for its completion. The cost was then apportioned among the owners of lots fronting and binding on the street, and a precept was issued against the appellee for the part of the cost apportioned against lots owned by him, and he brought this suit against the city and its marshal to enjoin the sale of his property, and to have it adjudged that his property was not liable for any part of the cost of the improvement. The court below granted the relief prayed for, and the city prosecutes this appeal.

Learned counsel for the appellee has urged many objections to the validity of the ordinance directing the improvement to be made, as well as to the various steps taken by the council in regard to the work, but we have only found it necessary to consider a single proposition which, in our opinion, must be decisive of the whole case. We therefore assume, without meaning so to decide, that the ordinance, and all subsequent steps affecting the validity of the contract and the liability of the lot-owners, were regular and valid, and that but for the matter we shall proceed to consider, the adjacent lots would be legally subject to a lien for the cost of the improvement.

The contract stipulated that the curb- and gutter-stones should be of certain quality and dimension; that the gutters should be laid in a designated form, on a bed of sand four inches deep, and that the street, after being graded, should be covered with gravel to the depth of eight inches next the gutters and ten inches in the center. A railroad track ran along the center of the street through its entire length, and for considerable portions of the distance there were two tracks in the street. Neither the contract nor the ordinance made any exception on account of these tracks, but both required gravel to be placed over the whole street. The contractor chose to construe the contract as not binding him to place gravel on the center portion of the street, and left a space of perhaps twenty (20) feet through the whole length of the work without putting any gravel on it, and the common council received the work in that condition, although by formal action it construed the contract as binding him to gravel the whole street; but in apportioning the cost among the lot-owners the estimated cost of graveling that part of the street was deducted, and only the residue of the contract price was apportioned.

The common council is the agent of the law, and as such is authorized to contract for the improvement of streets and to make the cost a charge upon the abutting lots. But this authority must be exercised in a prescribed manner, i e. by ordinance, and the ordinance must prescribe the kind of improvement to be made and the material to be used either by setting them forth in detail or by reference to such details in some other ordinance or writing. ...