Craycraft v. Selvage
| Citation | 73 Ky. 696 |
| Parties | Craycraft, & c. v. Selvage, & c. Louisville v. Selvage, & c. |
| Decision Date | 08 February 1874 |
| Court | Kentucky Court of Appeals |
APPEALS FROM LOUISVILLE CHANCERY COURT.
LEE & RODMAN, RUSSELL & HELM, For Appellant Craycraft,
City Charter of 1870, sec. 12.
MS Op., April 18, 1874, Craycraft v. Redd & Bro.
MS Op., April 4, 1874, Caldwell v. Obst.
Sedgwick on Statutory and Common Law, 466.
Dillon on Mun. Cor., secs. 55, 556, 558, 605.
Blackwell on Tax Titles, 732.
MS Op., 1874, Murray et al. v. Tucker.
MS. Op., June 15, 1871, Heheman v. Snead, & c.
2 Kan. 371, City of Leavenworth v. Rankin.
6 Mass. 40, Andover & Medford Turnpike Co. v. Gould.
2 Cow. 678-99, N. Y. Fireman's Ins. Co. v. Ely.
7 Cow. 402, Ex parte Wilcocks.
5 Wend. 547, Hancock v. College of Physicians.
9 How. Rep. (U. S.) 248.
2 Met. 72, 73, Maddox v. Graham & Knox.
8 Met. (Mass.) 194, 195, City of Lowell v. Headly.
7 Bush, 601, Kniper v. City of Louisville.
3 Sterrard & Porter, 13.
8 Bush, 172, Uhrig v. Horstman.
9 Bush, 189, Murphy v. City of Louisville.
| 9 Pick. Rep. 496. | 4 Hill, 81. |
| 3 Brevard's Rep. 396. | 8 Bush, 514. |
| 1 Black's Rep. 39. | 13 Pick. 284. |
| 2 McChord's Rep. 117. | 12 Mass. 286. |
| 6 Mass. 40. | 40 Ill. 147. |
| 15 Mass. 205. | 38 Ala. 160. |
20 Cal. 102, Zottman v. San Francisco.
16 How. Pr. R. 444, Brady v. The Mayor, & c. of New York.
10 Bush, 179,Caldwell v. Rupert.
24 Barbour's S. C. Rep. 427, Swift v. Williamsburg.
14 Mass. 288, Franklin Glass Co. v. Wright.
15 Johnson, 358-583, People v. Utica Ins. Co.
16 Cal. 619 and 20 Cal. 102, McCracken v. San Francisco.
44 Penn. 118, McGonigle v. City of Alleghany.
T. L. BURNETT, For Appellant City of Louisville,
CITED
Charter of 1870 of Louisville, secs. 61, 12.
44 Penn. St. 118, McGonigal v. Alleghany.
CARUTH & LEIBER, For Appellees,
CITED
Charter of 1870 of Louisville, secs. 1, 12.
MS. Op., April, 1874, Craycraft v. Redd & Bro.
Dillon on Mun. Cor., 2d ed., sec. 648.
MS. Op., 1863, White v. City of Louisville.
9 Bush, 189,Murphy v. City of Louisville.
5 B. Mon. 200,City of Louisville v. Hyatt.
6 B. Mon. 575, Guthrie v. City of Louisville.
1 Met. 345,Kearney v. City of Covington.
10 Bush, 549,Louisville v. Nevin.
10 Bush, 179, Caldwell, & c. v. Rupert.
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 the General Council should prescribe by ordinance or resolution the depth from the street to which the assessment should extend (Lucas's Charter and Ordinances, sec. 9, act February, 1872, p. 71), and this not having been done, the ground east of the street can not be subjected to the assessment made against it.
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.
1. It is insisted by Craycraft's counsel that the petition does not contain a statement of facts constituting a cause of action. Whether it does or not is the first question to be decided.
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 repealed." It also provides for enforcing liens like that asserted in this case, but does not contain the foregoing provision requiring all persons liable under the same contract to be made parties to a suit against any one of them. Having inserted a provision in the present charter in reference to suits of this kind, we ought to assume that such provision contains the whole legislative will on that subject, and that the provisions of the old charter on the same subject were intended to be repealed. The right of action is given and the mode of proceeding is left to be governed by the Code of Practice, whereby a uniform system of practice is established.
2. The ordinance under which appellees' contract was made authorized the improvement of East Broadway from the dividing line between Craycraft's land and Cave-Hill Cemetery to the city limits, and required the work to be contracted for by squares. The charter gives the city power to improve its highways as may be prescribed by ordinance, and it was therefore competent for the General Council to designate in the ordinance the points between which improvements should be made; and a contract for the improvement of East Broadway to Highland Avenue, the nearest street to the point of commencement, was a compliance with the provisions of the ordinance; for whether that part of the street between the cemetery line and Highland Avenue is a square or not, it was certainly in compliance with the ordinance to let that part in a separate contract. Any other construction would sacrifice the substance of the ordinance to a mere matter of form. It was evidently intended by the passage of the ordinance to improve the street from the cemetery line to the city limits; but if the construction of the clause requiring the work to be contracted for by squares which is insisted on by Craycraft's counsel be adopted, and that part of the street does not in fact constitute a square, then the whole object would be defeated by attempting to adhere to a mere form. If the contract as made was not authorized, then none could have been made which would have been valid under the ordinance; and if none could have been legally made, it would result that the city is not authorized to improve the streets as may be provided by ordinance. If the contract had extended over the line between Cave Hill and Craycraft's land, it would have been unauthorized; and if it had extended in the opposite direction beyond the center of Highland Avenue, it would have been invalid under the ordinance, because it would then have included parts of two squares.
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.
3. It is next insisted for Craycraft that inasmuch as the ground east of the street can not be assessed, because the depth to which the assessment shall extend on that side was not fixed in the ordinance as required by the ninth section of the act of February, 1872, amending the city charter, it is impossible to ascertain what proportion of the whole cost is legally chargeable upon the ground west of the street, and that he is therefore not liable for any part of the assessment on either side.
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 ordinance and the contract, and both were valid, and a case was therefore made out in which, if there was any error in the proceedings of the General Council in making the apportionment, the court had power to correct it in such way as to do justice to all parties; and although Craycraft did not in his answer point out any objections to the apportionment, or make any objection to it except such as went to the validity of the ordinance and contract, the court below, on...
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