# Hitchcock v. Galveston

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## Dissenting Opinion

    Bradley
United States Supreme Court
96 U.S. 341
Hitchcock v. Galveston
ERROR to the Circuit Court of the United States for the Eastern District of Texas.
The judgment in the court below having been given upon a demurrer to the plaintiffs' petition, there is no controversy about the facts.
The city of Galveston, proposing to improve some of its sidewalks, entered into a contract with Dexter G. Hitchcock and James W. Byrnes, the plaintiffs, by which they agreed to furnish the materials and in whole or in part to do the work necessary for the improvement. The work consisted of filling, grading, curbing, and paving. By ordinance, it had been determined that the sidewalks should be paved with one or the other of the following-described materials: 'Asphalt, hard bricks laid in a bed of Portland cement and properly grouted, concrete made of Portland cement mixed with other proper materials, or with tile or stone laid in a bed of Portland cement.' The ordinance contains a provision that the 'owners of lots or parts of lots who represent in each block a majority of the feet fronting or abutting upon any sidewalk of the same which is to be paved' shall have the 'right . . . to select and designate which of the said materials they prefer and desire to be used in the construction of the pavement to be laid down on the said designated sidewalk,' reserving, however, to the chairman of the committee on streets and alleys the right to determine the material to be used in case the lot-owners failed to make a selection. Of course, grading, filling, and curbing were a necessary preparation to any of these different modes of paving; and the city ordinances made provision for these several kinds of preparatory work, as well as for the paving. It was in pursuance of these ordinances that the contract was made. By it, the city engaged, in the first instance, to pay to the plaintiffs the sum of $1.75, in bonds of the city, styled 'Galveston city bonds for sidewalk improvements,' to be taken at par, for every square yard of pavement laid down by them upon certain designated sidewalks, the pavement to be composed of asphalt in bulk, rolled solid to the thickness of three inches; provided, however, the plaintiffs 'obtain the written consent of the owners of the property fronting or abutting upon the said sidewalks to the laying down of the said pavement, which written consent or selection of said pavement shall be filed in the mayor's office with the city clerk.'
Following this conditional arrangement for an asphalt pavement, where such a pavement might be selected, the parties by the contract entered into other engagements. The city undertook to pay to the plaintiffs in the said bonds, to be taken at par, the sum of $1.25 for every cubic yard of filling necessary to be done 'upon any and all of the said sidewalks preparatory to the laying of any pavement thereon,' the above price to include not only the filling, but the grading, tamping, and rolling.
The contract next contained an engagement of the city to pay to the plaintiffs in the said bonds, to be taken at par, forty-five cents for each square foot of wooden curbing (to be composed or made of three-inch cypress) 'that might be needed or used in filling up and grading the said sidewalks preparatory to putting down the said pavement, or any other.'
The contract also bound the city to pay the plaintiffs for wooden curbing needed or used for putting down the pavements that were to be only six feet in width. In consideration of all these promises of the city, the plaintiffs bound themselves to lay down and fabricate the said pavement in the manner and style above set forth and stipulated; and they also bound themselves to fill, grade, tamp, roll, and curb the said sidewalks as above set forth and stipulated, and to receive in payment for all the said work the respective prices above stated in Galveston city bonds for sidewalk improvement at par. They further bound themselves to commence the work within twenty days, and to finish it without unnecessary delay.
Accordingly, they proceeded to fulfil their engagements. They made contracts for labor and materials, performed a large amount of work, completed the curbing and filling of some sidewalks, and were going on in earest to finish the entire work, when, at the expiration of forty-six days, they were compelled by force and by authority of the city to abandon their work without any fault of their own. On the 20th of April, 1874, the city council declared the contract null and void, and directed the mayor to notify the contractors to that effect, which he did, two days thereafter. Hence the present suit to recover damages for the breach of the contract.
The demurrer to the petition was sustained, and judgment rendered for the defendants. The plaintiffs sued out this writ of error.
Mr. F. Charles Hume and Mr. S. S. Henkle for the plaintiffs in error.
Where a municipal corporation has power to do certain work it may order its agents, for it and in its name, to enter into the requisite contract, which will be binding upon it. Burrill v. The City of Boston, 2 Cliff. 590; Ford v. Williams, 21 How. 287; San Antonio v. Lewis, 9 Tex. 69; Bank of Columbia v. Patterson, 7 Cranch, 299; Dunn v. Rector of St. Andrew's Church, 14 Johns. (N. Y.) 118; Glidden v. Unity, 33 N. H. 577; 2 Kent, Com. 290; Angell & Ames, Corp., sect. 212; Fitton v. Hamilton City, 6 Nev. 196; Smiley v. Mayor, &c., 6 Heisk. (Tenn.) 604; Story, Contr., sect. 312; Hoyt v. Thompson's Executor, 19 N. Y. 207; Abby v. Billups, 35 Miss. 618; Alton v. Mulledy, 21 Ill. 76; Dillon, Mun. Corp., sects. 132, 374; Story, Agency, sect. 54; Clark v. Mayor, &c. of Washington, 12 Wheat. 40; Fanning v. Gregorie et al., 16 How. 524; Sharp v. Mayor, &c. of New York, 25 How. (N. Y.) Pr. 388; Dickerson v. Peters, 71 Pa. St. 53; Northern Central Railway Co. v. Mayor, &c. of Baltimore, 21 Md. 93.
The absence of authority to issue the bonds does not impair the validity and obligation of the contract. They are merely evidences of indebtedness; and, if they are absolutely void, that indebtedness remains, and the city is liable upon the contract, and for damages occasioned by the breach of it. State Bank v. Leavitt, 14 N. Y. 162; Leavitt v. Curtis et al., 15 id. 9; Oneida Bank v. Ontario Bank, 21 Id. 490; Argenti v. City of San Francisco, 16 Cal. 255; Maher v. Chicago, 38 Ill. 266; Chicago v. The People, 48 id. 416.
By the contract, the city intended to incur a direct liability to the contractor, and for payments made reimburse itself by assessments upon, and in the event of their non-payment by sales of, the lots bordering upon the streets improved. Where, as in this case, there is no express limitation upon the power of the city, such a contract is valid. Allen v. City of Janesville, 35 Wis. 403; Forltz v. Cincinnati, 2 Handy (Ohio), 261; Sleeper v. Bullen, 6 Kan. 300; Maher v. Chicago, 38 Ill. 266; Chicago v. The People, 48 id. 416; Louisville v. Hyatt, 5 B. Mon. (Ky.) 199; Kearney v. City of Covington, 1 Metc. (Ky.) 339; Swift v. Williamsburgh, 24 Barb. (N. Y.) 427.
The city having so contracted, and failed or refused to make such assessments and collections with due diligence and pay the contractor, is liable to suit. Baldwin v. Oswego, 1 Abb. (N.Y.) App. Dec. 62; Cummings v. Brooklyn, 11 Paige (N. Y.), 596; Allen v. City of Janesville, Fortz v. Cincinnati, Sleeper v. Bullen, Louisville v. Hyatt, Kearney v. Covington, Swift v. Williamsburgh, and Argenti v. City of San Francisco, supra.
The provision that the council shall not borrow for general purposes more than $50,000 has no bearing whatever upon this contract for special improvements. Cummings v. Brooklyn, Baldwin v. Oswego, Allen v. City of Janesville, and Argenti v. City of San Francisco, supra.
Mr. W. P. Ballinger and Mr. George Flournoy, contra.
The city of Galveston had no express authority to make the contract in question, or to issue bonds in payment of the work done thereunder, and none can be implied from their general powers. Police Jury v. Britton, 15 Wall. 566; The Mayor v. Ray, 19 id. 468; Williams v. Davidson, 43 Tex. 1; Dillon, Mun. Corp., sect. 393. The contract to pay in such bonds for improvements of that description was therefore void. Union Pacific Railroad v. Lincoln County, 3 Dill. 300; State v. Swift, 11 Nev. 167; Thomas v. Port Huron, 27 Mich. 320; Lucas et al. v. San Francisco, 7 Cal. 463; Roeck v. Newark, 33 N. J. L. 129; New Albany v. Sweeney, 13 Ind. 245; Johnson v. Indianapolis, 16 id. 227; McCullough v. Brooklyn, 23 Wend. (N. Y.) 458; Lake v. Trustees of Williamsburgh, 4 Den. (N. Y.) 520; Hunt v. Utica, 18 N. Y. 442; Swift v. Williamsburgh, 24 Barb. (N. Y.) 427; Baldwin v. Oswego, 1 Abb. (N. Y.) App. Dec. 62; Hale v. Kenosha, 29 Wis. 599; Bridgeport v. New York & New Haven Railroad Co., 36 Conn. 255; Alexander et al. v. The Mayor, &c. of Baltimore, 5 Gill (Md.), 383; Lansing v. Lansing, 25 Mich. 207; Ruppert et al. v. The Mayor, &c. of Baltimore, 23 Md. 184; Annapolis v. Harwood, 32 id. 471; Fairfield v. Ratcliff, 20 Iowa, 396; Head v. Providence Insurance Co., 2 Cranch, 127; Zottman v. San Francisco, 20 Cal. 96; Nicholson Paving Co. v. Painter, 35 id. 699; Whitehall v. Pulaski County, 2 Dill. 249; Hall & Argalls v. County of Marshall, 12 Iowa, 142; Regents' University v. Hart, 7 Minn. 61; King v. Brooklyn, 42 Barb. (N. Y.) 627; Richardson v. Brooklyn, 34 id. 569; Dillion, Mun. Corp., sects. 55, 610, 653, 654.
The contract, if valid, will impose upon the city a liability exceeding $50,000, and is therefore in violation of that provision in the charter of the city which prohibits the council from borrowing for general purposes more than that sum. Rogers v. Burlington, 3 Wall. 654; Middleton v. Alleghany County, 37 Pa. St. 237; McPherson v. Foster, 43 Iowa, 48; State v. Strader, 25 Ohio St. 527.
The contract sued on is not valid, because, 1. The city council could not delegate the power to mayor and the chairman of the committee on streets and alleys to make it; 2. The said mayor, &c., still further delegated the power to determine the paving of said sidewalks to the owners of the lots thereon. Dillon, Mun. Corp., sects. 60, 567, 618, 649, and notes; Lyon v. Jerome, 26 Wend. (N. Y.) 484; Danforth v. Paterson, 34 N. J. L. 163; State v. City of New York, 3 Duer (N. Y.), 131; Goszler v. Georgetown, 6 Wheat. 593; Hyde v. Joyes, 4 Bush (Ky.) 468; Mayor of Baltimore v. Porter, 18 Md. 284; Oakland v. Carpentier, 13 Cal. 540; Ruggles v. Collier, 43 Mo. 353; East St. Louis v. Wehrung, 50 Ill. 28; Day v. Green, 4 Cush. (Mass.) 433; Coffin v. Nantucket, 5 id. 269; Ruggles v. Nantucket, 11 id. 433; Ex parte Winsor, 3 Story, 411; Scofield v. Lansing, 17 Mich. 437; Schenley v. Alleghany, 36 Pa. St. 62.
It results from the want of authority to bind the city by the contract sued on that there is no liability for the filling and curbing which it is alleged has been performed by the plaintiffs. Cooley, Const. Lim. 196; Bonesteel v. Mayor of New York, 22 N. Y. 162; McDonald v. Mayor of New York, 4 Thomp. & C. (N. Y.) 177, and cases cited; Murphy v. Louisville, 9 Bush (Ky.), 189; Craycraft v. Selvage, 10 id. 696; Reilly v. Philadelphia, 60 Pa. St. 467.
The contract was subject to the condition that the lot-owners fronting or abutting upon the sidewalks should select the kind of pavement, and that their written consent to laying it down should be obtained by the plaintiffs. The pleadings do not aver the performance of this condition, and without it the contract, even if authorized by the charter, was not binding upon the city.
MR. JUSTICE STRONG, after stating the case, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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