Murphy v. City of Louisville
| Decision Date | 07 December 1872 |
| Citation | 72 Ky. 189 |
| Parties | Murphy v. City of Louisville. |
| Court | Kentucky Court of Appeals |
In the month of August, in the year 1868, both boards of the General Council of the city of Louisville passed an ordinance for the improvement of one of the streets of that city. The mayor having advertised for proposals to construct the work, the contract was awarded to the appellant, Murphy, he being the lowest bidder. This contract was reduced to writing, signed by the mayor on the part of the city, also by the appellant, and attested by the city engineer, in accordance with the law governing the action of the city officials in such matters.
By section 13 of the ordinance to establish an engineer's department for the city of Louisville it is provided "that no contract shall be binding on the city until it has been approved by both boards of the General Council, and this shall be necessary to make the contract complete and binding on the city."
In January, 1869, the board of aldermen approved the contract, as required by this ordinance; but so far as appears from this record no order of approval was ever made by the common council.
In order to make a contract binding and complete on the part of the city for such an improvement as the one in question it must be signed by the mayor and the party undertaking its execution, and approved by the boards of aldermen and common council. When this is done the party making the improvement is entitled to recover of the property-holders on the street where the improvement is made the agreed price. It is conceded by the parties to this controversy that no recovery can be had as against the owners of the property located on the street where this improvement was made, for the reason that the contract was not executed as required by section 13 of the ordinance before referred to; and it is now insisted by the appellant (Murphy) that, as he can not recover of the property-owners, the city is liable to him for the value of his work. This work is estimated to be worth about nineteen hundred dollars, and was done and performed on a street used and controlled by the city authorities.
He alleges in his petition facts showing that his only remedy, if any, is against the city, and the liability of that corporation is the essential question in the case.
The appellant insists that the city is liable, first, because the city authorities after the contract was signed by the mayor ratified and approved it; second, that the city derived a benefit from appellant's labor, and the law implies a promise to pay; third, because the authorities failed or refused to have the contract approved by the common council, thereby releasing the owners of the property adjacent to the street from all liability to pay for the improvement.
There was no law in any clause of the city charter, or any ordinance pertaining to it, at the date of this contract, with reference to street improvements, authorizing the city authorities to make any contract other than in the mode prescribed by section 13 of the "ordinance to establish an engineer's department." The power of the mayor, board of aldermen, and common council to contract for such improvements is derived solely from this enactment. Their power to contract is limited and restricted by its provisions, and an attempt to make contracts in a different manner can not be sanctioned or sustained by any law creating or governing this corporation. In the case of Head against the Providence Insurance Company Chief Justice Marshall says, "The act of incorporation is to them an enabling act; it gives them all the power they possess; and when it prescribes to them the mode of contracting they must observe the mode, or the instrument no more creates a contract than if the body had never been incorporated."
If the approval of the common council can be dispensed with and still the contract remain obligatory, the approval of the board of aldermen would be equally as unnecessary, and the mayor alone left with the sole power of executing all such contracts for the city. These safeguards, devised by legislative wisdom for the protection of municipal corporations, would thus be disregarded, and the city placed within the power of an official who might be bold or reckless enough to render nugatory these conservative powers so necessary to the faithful administration of every city government.
The contract relied upon in this case was not executed in accordance with the law under which the city officials are required to act in making such contracts, and is therefore null and void. Whether a contract not made in accordance with the law from which the city officials derive their power can be afterward ratified so as to make it binding on the corporation is a question of doubt, and in regard to which we find conflicting authorities. It is not made necessary, however, in the present case to determine this question. The corporation, by its officers, never ratified the contract. It is true the board of aldermen and common council passed a resolution directing the payment of the money; but this action on their part, instead of being approved by the mayor, was vetoed, and that veto sustained by the board of aldermen; thus leaving the corporation and the appellant in the position to each other with reference to the contract they were before the resolution passed. Nor is the corporation liable for the value of the work by...
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Joyce v. Falls City Artificial Stone Co.
...the equity of the case demanded. It does not appear that appellant was in any wise prejudiced by the action of the board. In Murphy v. City of Louisville, 72 Ky. 189, the opinion is based on an ordinance of the city that no contract shall be binding on it or become complete until approved b......