City of Louisville v. Hyatt
| Decision Date | 17 October 1844 |
| Citation | 44 Ky. 199 |
| Parties | City of Louisville v. Hyatt, & c.; City of Louisville v. Evans. City of Louisville v. Mitchell; Evans v. Gray, & c. |
| Court | Kentucky Court of Appeals |
Corporations. Corporate powers of Mayor and Council of Louisville.
APPEAL FROM THE LOUISVILLE CHANCERY COURT.
Loughborough and Wolfe for the city.
Pirtle for Mitchell and Stokes.
Guthrie for Evans, Gray and Hyatt
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 reversed, 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 farther 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 Councilmen 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 be ordered by the unanimous consent of the Mayor and Councilmen, in council; and that this unanimous consent is not merely the unanimous vote of a board constituted for the transaction of ordinary business under the charter, but the unanimous consent of the Mayor and all the Councilmen of the city, to be given in council.
Cases stated and their object.
In each of the three cases, the work for which remuneration is claimed consisting in the case of Evans vs Gray, & c., of grading, paving, and McAdamizing, and in the other two of grading only, was done under a contract made with the undertaker on the one side, and in the name of the city on the other, and executed by the Mayor, with the corporate seal, under the alleged authority of an ordinance of the Mayor and Councilmen, which contract specifies the price to be paid for the work, and promises, in effect, that upon its being completed and received by the Mayor and street committee of the city council, the necessary apportionment and orders should be made against the owners of ground fronting the same, for the collection of the amount due for the work. There was no petition from the lot owners in any of the cases. And after the two cases which were formerly here had been returned to the Court of Chancery, and in the regular progress of the case of Mitchell, which had never been before this Court, it was made to appear by certified copies of the proceedings of the Council, that there had not been, in either of the cases, a unanimous vote of the Mayor and all the Councilmen, in support of either of the ordinances or orders under which the contract was made and the work done; there being, in the two first cases, but a partial attendance of Councilmen, when the orders were passed, and in the last case, a want of unanimity in those who were present, of whom two actually voted against the order.
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 bind the lot owners on any square to pay for grading and paving the street in front of their lots, except by an act in which the Mayor and all the Councilmen should concur, there was no lien under the charter, and of course no case for its enforcement, and as the bills make out no ground of personal liability against the lot owners, but rest solely upon the efficacy of the orders of the Mayor and Councilmen, it follows, also, that they were properly dismissed as against the lot owners. And upon this hypothesis, the only question would be, whether, as the city had failed to furnish the proper means of coercing remuneration from the lot owners, it was not proper to decree against her the sums which, in carrying out the assumed agency between them and the undertakers of the work, her agents had ascertained and admitted to be due.
Lots on squares in Louisville were not liable for an assessment made upon them by the Mayor and Councilmen, for grading and paving except it was made on their petition, or ordered by unanimous consent of the Mayor and Councilmen in council assembled.
The propriety of such a decree is denied on the ground: 1st. That it was not intended that the city should be liable, but the undertakers agreed to look to the lot owners and not to the city. 2nd. That there was a mutual mistake as to the efficacy of the ordinance in question, and the city ought not to be made liable for it. And 3rd. That the Mayor and Councilmen had no authority to bind the city for the grading and paving of the streets, and therefore, the expense should not, and cannot be devolved upon the city, by their failure so to act as to bind the lot owners, or by their mistake in supposing that their action had been effectual for that purpose, but that the responsibility should fall upon the Mayor and Councilmen who caused the work to be done.
Farther questions arising in the cases.
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 were 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 the part of the city, through her agents, that the orders were effectual. The facts on which their efficacy depended, were peculiarly within their knowledge, and the undertaker was not bound to inquire farther, but was authorized to confide in their assumption. And after he has sustained the whole burden of the contract, and the city has derived the full benefit of his labor, induced by his faith in her promise to secure to him a remedy against the lot owners, she cannot escape the responsibility which, in equity and good conscience devolves on her for a failure to keep this promise, either on the gronnd of her own mistake as to a matter which she ought to have known and undertook to know, or on the ground of the undertaker's mistake as to the same matter induced by her representations, or on the ground of his agreement not to look to her for pay, which was founded on her own promise to put it in his power to coerce it from the lot owners. The work was done at the request of the city, under a contract with her agents, made in pursuance of an ordinance competent to bind her, though not sufficient to bind the lot holders; and upon the failure of her authority in this respect, she was bound under the law of principal and agent, and of contracts, to indemnify the other party.
The Mayor and Council of the city of Louisville employed persons to grade and pave streets in Louisville, the undertakers agreeing to take the liability of the lot holders in payment--the Mayor and Council exceeded their authority by acting without the petition of lot holders or the unanimous consent of the Council--held that the city was bound for the work and labor to the under takers.
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 responsible 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 seem to be no necessity for a special grant to enable them to appropriate any funds of the corporation which they could legitimately control. We find, however, in the legislative acts relating to the...
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