City of Memphis v. Brown
Decision Date | 01 October 1873 |
Citation | 87 U.S. 289,22 L.Ed. 264,20 Wall. 289 |
Parties | CITY OF MEMPHIS v. BROWN |
Court | U.S. Supreme Court |
APPEAL from the Circuit Court for the Western District of Tennessee; the case, as appeared from a master's report, and otherwise, having been thus:
By a general incorporation act of the State of Tennessee, all cities of the State have full power to provide for the paving of streets, alleys, and sidewalks.1
The charter of the city of Memphis, in the State just named, enacts that 'the board of mayor and aldermen shall have power to improve, preserve, and keep in good repair the streets, sidewalks, public landings and squares of the city.'2
It enacts also,3 that the city may require lot-owners to improve the streets fronting their lots, and that 'should any owner fail to comply with any ordinance requiring him to repair, grade, and pave the same, the mayor and board of aldermen may contract with some suitable person for repairing, grading, and paving the same, and pay therefor,' and collect the amount from the lot owner.
It enacts also that the city may issue its bonds 'for the construction and pavement of the principal streets of the city;' and an act amendatory of the charter authorizes the issue of bonds 'for any public improvement.' Nothing was said as to the rates at which it might sell these bonds.
The ordinances of the city require that 'the city attorney' should prosecute all suits to which the city might be a party, or in which it might be interested.
These provisions of law and this ordinance being in force, the city of Memphis, in the year 1866, being desirous to have certain of its streets paved with what is known as the Nicholson pavement, passed an ordinance directing the mayor to advertise for twenty days for paving the whole or parts of them according to the plans and specifications of the engineer's office, and further authorized the mayor and the finance committee to make and enter into contract or contracts with the lowest responsible bidder, as to payments and time of completion, with such restrictions as they might think best.
The ordinance went on:
The advertisements and surveys directed were made, and bids put in by different parties. Among the bids were one by Taylor, McBean & Co., and another by Forest, Mitchell & Co. These two bids were accepted.
Accordingly, on the 11th of March, 1867, the city entered into a contract with Taylor, McBean & Co. for the paving, in sections, certain streets. The contract said:
'Upon the completion of each section, the contractors shall receive from the owner or owners of lots fronting upon said section one-half of the price of the same in cash, the remaining half to be paid by the said owner or owners in thirty, sixty, and ninety days, they giving their notes for the same, with the lien fixed by the city charter retained in said notes.
'The accounts for said pavement will be made out upon the completion of each section, by the city engineer, against the property owner or owners and delivered to the contractors for collection, and if not paid according to the terms above specified, within ten days after said payment becomes due, said accounts shall be placed in the hands of the city attorney for collection under the city charter.
'The city of Memphis will and does hereby guarantee to the contractors the payment of said accounts, as so assessed against the property owner or owners for the pavement.'
This contract was called 'the cash contract.'- On the 16th of July, 1867, the city entered into another contract, this one being with Forest, Mitchell & Co., for paving, in like sections, certain other streets. This contract said:
This contract was called 'the bond contract.'
As the reader will observe, there was no provision in this contract for assessment, nor any reference to property owners, or guarantee of payment. The contract was, however, subsequently modified as to the amount to be paid for certain portions of the work and as to the form of payment, with a provision for assessment and collection of certain portions thereof, as had been made in the cash contract.
Both of the contracting firms above named were unable to perform what they had contracted to do, and with their consent and that of the city, a new firm, that of Brown & Co., was substituted in their places; succeeding to their obligations and to their rights. Brown & Co. paved the streets according to the contract.
The property-holders of the streets paved did not pay for the paving opposite to their respective lots; and this failure of theirs producing embarrassment on the part of Brown & Co., these last sought relief by an application to the city. To give this relief the city, in August, 1868, lent to Brown & Co. its bonds to the nominal amount of $99,000. The bonds were worth at the time not more than fifty cents on the dollar, and they were lent with the understanding that they might be sold for what they would bring, and that other bonds might be bought to replace them when they should mature. Early in November, 1868, another application of the same character was made for $175,000 of the city bonds; and a resolution was passed on the 18th, by the city councils, and an agreement signed on the 20th of November by the city of the first part and Brown & Co. of the second. The agreement recited:
'That, whereas the party of the first part, in session on the 18th day of November, 1868, did pass the following resolution, to wit:
"Resolved, &c., That the city will loan Messrs. Brown & Co., the contractors of the Nicholson pavement, one hundred and seventy-five thirty-year $1000 pavement bonds for eighteen months, upon condition that said contractors will place in the hands of the city attorney paving bills against the property holders to the amount of the face value of said bonds; and upon the further consideration that said contractors WILL release the city from all liabilities upon said paving contract, unless it should be decided by the courts of least resort that the property holders are not liable for said pavement. The interest upon said bonds shall be paid by the said Brown & Co., and at the end of said eighteen months said bonds shall be returned to the city, principal and interest, unless said interest has been previously paid:'
'Which said resolution embraces all the conditions of said loan, and is accepted by the parties of the second part.'
The instrument then proceeded:
The city did not comply with this contract. The master thus set forth the facts:
...
To continue reading
Request your trial-
City of Parkersburg v. Baltimore & O.R. Co.
... ... Fulton ... County, 10 Wall. 676, 19 L.Ed. 1040; Loan ... Association v. Topeka, 20 Wall. 655, 22 L.Ed. 455; ... Parkersburg v. Brown, 106 U.S. 487, 501, 1 Sup.Ct ... 442, 27 L.Ed. 238; Daviess County v. Dickinson, 117 ... U.S. 657, 6 Sup.Ct. 897, 29 L.Ed. 1026; Bloomfield v ... ordinances of the city, every presumption favorable to their ... validity should be indulged. Memphis v. Brown, 20 ... Wall. 289, 22 L.Ed. 264; Lincoln v. Sun Vapor Co., ... 59 F. 756, 8 C.C.A. 253; Meyers v. New York, 58 A.D ... 534, 69 ... ...
-
Hein v. Marcante
... ... J. 795-797; 17 C. J ... 914; Hardware Co. v. Walker (Texas) 113 S.W. 163; ... Wilton v. City of Flint (Mich.) 87 N.W. 86; ... Feller v. McKillip (Mo.) 81 S.W. 641; Carrera v ... Dibrell ... and the defendants could hardly be responsible for that ( ... City of Memphis v. Brown, 87 U.S. 289, 20 Wall. 289, ... 22 L.Ed. 264; George R. Barse etc. Co. v. McKinster, ... ...
-
Monett Electric Light, Power & Ice Co. v. Incorporated City of Monett, Mo.
... ... 'Passed ... February 4th, 1893, T. H. Jeffries, Prest. Board of Aldermen; ... approved Feb. 4th, 1893, A. W. Brown, Mayor. Attest: A. V ... Darroch, City Clerk. (Municipal Seal.)' ... It is ... obvious that this ordinance undertook to grant exclusive ... L.Ed. 923; Marsh v. Fulton, 10 Wall. 676-684, 19 ... L.Ed. 1040. And such a contract is to be governed by the ... local law. City of Memphis v. Brown, 20 Wall. 289, ... 22 L.Ed. 264. Exclusive franchises are not favorites of the ... 'Restraints ... upon governmental agencies ... ...
-
Johnson v. Charles D. Norton Co.
... ... To sustain this counsel cite: ... Isett v. Hoge, 2 Watts (Pa.) 128; Brown v ... Brooks, 25 Pa. 210; Hoffman v. Bechtel, 52 Pa ... 190; National Society v. Lichtenwalner, ... absolute guaranty, we cite only a few: Neil v. Ohio ... Agricultural Bank, 31 Ohio St. 15; City Savings Bank ... v. Hopson, 53 Conn. 453, 5 A. 601; Yancey v. Brown, ... 3 Sneed (Tenn.) 89; ... conclusion from the Supreme Court cases cited, as well as ... from Memphis v. Brown, 20 Wall. 289, 311, 22 L.Ed ... 264, where the question arose upon a guaranty that: ... ...