Case 1 — Action to Enforce Lien for Street Improvement

Sept. 19.

#### Dumesnil v. Louisville Artificial Stone Co. (Two cases.) Ormsby v. Same. (Two cases.) Nichols v. Same.

APPEAL PROM JEFFERSON OIROUIT COURT, COMMON PLEAS DIVISION.

Action by Louisviixe Artificial Stone Company v. Mary Dumes-NIL, ET ALS., TO ENFORCE LIENS FOR THE COST OF STREET IMPROVEMENTS.

Judgment for Plaintiff and Defendants, Except City of Louis'ville, Appeal.

Affirmed.

Municipal Corporations — Street Assessments — Irregularity in Proceedings.

Held: 1. Under Kentucky Statutes, section 2834, providing tliat no error in the proceedings of the general council shall *exempt*from payment for the reconstruction of a sidewalk in a city of the first class after the work has been done- as required by either tbe ordinance or contract, the contractor is entitled to payment for his work, when done pursuant to the ordinance or contract, though all the work specified in the ordinance was not included in one contract, and part of it had not been let at all, and two lots on one square were excepted from the contract.

2. The apportionment made by tbe general council will not be corrected for errors in tbe proceedings, unless tbe parties complaining have been prejudiced.

3. The action of the general council in ordering the reconstruction of a sidewalk which had been dowrl for twenty-two years will not be disturbed, though the preponderance of the evidence shows that the sidewalk was not in a bad condition.

*2SIMRALL, & DOQLAN, Attobneys fob appellant, Maby Dumesnil.

POINTS AND AUTHORITIES.

1. It is not within the power of the municipal authorities to destroy the good sidewalks for which appellants had already paid and charge them with the cost of making this new and expensive “improvement." Dillon on Municipal Corporations, vol. 2, sec. 764 and note; sec. 819, note; Wright v. Chicago, 20 Ill., 252; Annapolis v. Harwood, 32 Md., 471; Fairfield v. Ratcliff,. 20 la., 39fi; Thomas v. Gain, 35 Mich., 162; Tidewater Co. v. Costers, 18 N. J. Eq., 518; Graham v. Conger, 85 Ky., 587-589, 590; Constitution, secs. 2,3,13,14, and 171; City of Louisville v. Louisville Rolling Mill Co., 3 Bush, 423-425; Wistar v. Philadelphia, 80 Pa. State, 505-513; Philadelphia v. Wistar, 92 Pa. State, 404; Wistar v. Pa. (Ill Pa. State, 404); Philadelphia v. Henry, 161 Pa. State, 38-40; Reed v. Erie, 79 Pa. State, 353; Hammett v. Philadelphia, 65 Pa. .State, 146-157; Cheaney v. Hooser, 9 B. Mon., 341; Hawes v. Chicago, 158 Ill., 653-659; Dillon on Municipal Corporations, sec. 327, &c.; Cooley on Taxation, page 428; Corrigan v. Gage, 68 Mo., 541-545; Burns v. Baltimore, 48 .Maryland, 202-203 and 206; Howell v. Bristol, 8 Bush, 499; Preston v. Roberts, 12 Bush, 587-589; Cin., N. O. & Tex. Pac. R. R. v. The Com., 81 Ky., 501; Frantz, Jr. v. Jacob, 88 Ky., 531 and 532; Sutton v. Louisville, ñ Dana, 28; Courtney v. Louisville, 12 Bush, 419; Preston v. Rudd, 84 Ky., 150; Broadway Baptist Church v. MeAtee, 8 Bush, 517-518; Keasey v. Louisville, 4 Dana; Kemper v. Louisville, 14 Bush, 92-93; Lexington v. Mc-Quillan’s Heirs, 9 Dana, 516-517.

2. No valid proceedings have ever been taken to fix any liability upon these appellants. Hydes & Goose v. Joyes, 4 Bush, 467-470; City of Henderson v. Lambert, 14 Bush, 24; 2 Dillon on Municipal -Corporations, sec. 799, p. 978, note 1 (4th ed.); St. Louis v. Clemmons, 49 Mo., 5'52-'555; Murray v. Tucker, 10 Bush, 240-245; Kentucky Statutes, secs. 2826 and 2837.

F. W. MORANCY, Attobney fob appellant. BODLEY, BASKIN & GRUBBS and WM. MIX of counsel.

ABSTRACT OF POINTS AND AUTHORITIES.

The ' kind and limits of a street improvement must be fixed by the -city council by ordinance and when thus fixed, must be done as ordained, in order to charge abutting property. The board of public works, an executive board, can not vary either the character of the work or its limits. The entire work set forth in the ordinance must be fully completed or the prop*3erty owners can not he taxed with any of the costs. 4 Bush, 467, Hydes & Goose v. Joyes; 14 Bush, 28, Henderson v. Lambert; 92 Ky., 95, Zable v. Louisville Baptist Or. Home; 46 Cala., 59, Richardson v. Heydenfeldt; 47 Cal., 456, People San Francisco v. Clark; 35 Cal., 524, Doughty v. Hitchcock; 50 Cal., 554, Stockton v. Whitmore; 36 'Pac. Rep., 1081, Treanor v. Houghton; 9 Ky. Law Rep., 286, Haffey v. Letcher.

The question whether a local improvement is needed and its kind and extent belongs primarily to the local legislature, but it can not arbitrarily tax the property with the costs of such improvement where it is manifest that it is not needed at all. 84 Ky., 155, Preston v. Rudd; 3 Bush, 423, .City of Louisville v. Lou. Rolling Mills; 80 Pa. St., 505, Wistar v. Philadelphia; 92 Pa. St., 404, Philadelphia v. Wistar; 111 Pa. St., 600, Wistar v. Philadelphia; 161 Pa. St., 38, Philadelphia v. Henry; 65 Pa. St., 146, 'Hammett v. Philadelphia; 158 Ill., 653, Hawes v. Chicago; 48 Md., 202, Burns v. Baltimore; 68 Mo. App., 541, Corrigan v. Gage; Constitution Kentucky, sec. 2.

SHACKELFORD MILLER, Attorney for appellee.

POINTS AND AUTHORITIES FOR APPELLEE.

1. The work can, and should be, let in separate contracts, each covering a single square, although the ordinance directed four squares to be improved.

There is no law requiring the contract to embrace all the territory included in the ordinance, and it is to the interest of the property holders to have as many bidders for the work as possible. Eyerman v. Blakesley, 13 Mo. App., 408; Kemper v. King, 11 Mo. App., 116; Malchus v. District of Highlands, 4 Bush, 547; 24 Am. *&*Eng. Ency. of Law, 6:2; 10 Am. & Eng. Ency. of Law, 301.

2. The fact that the new pavement in front of Rohlsen’s property was not taken up, and was *excepted in the contract*in case 12,-732, has not prejudiced the other defendants. They have only paid for the work actually done. It is not claimed to apply to the other appeal.

3. The city authorities are the judges of the necessity of the improvement. Ky. Stats., sec. 2825; Preston v. Rudd, 84 Ky., 155; Allen v. Woods, 20 Ky. Law Rep., 60; Bullitt v. Selvage, 20 Ky. Law iRep., 599; 10 Am. & Eng. Ency. of Law, 30(1.

4. The old pavement was made in 1872, twenty-two years before it was reconstructed. The charge in this case against the property was about $2.00 per front foot, of property worth at least $40.00 per front foot, not counting the improvements. Counting *4the improvements, the cost was less than two per cent, of the value of the property.

The trial judge found as a matter of fact that it was not spoliation. He knew the witnesses, and great weight will be given to his finding of fact.

5. 'The appellant 'Nichols and other property owners tried this case in July, 1894, by their injunction suit No. 4792, to stop this work.

Mrs. Dumesnil did the same by her injunction suit No. 4863, filed July 20, 1894, for the same purpose.

These facts are plead in these cases as *res judicata.*See Judge Field’s opinion in the injunction cases.

6. The demurrers to the counter-claims against the plaintiff for damages were properly sustained.

Where the contractor does the work according to the ordinance and contract, he is not liable for damages, although the city may be liable. N. & C. Bridge Co. v. Douglass, 12 Bush, 716; Pearson v. Zable, 78 -Ky., 170; Anderson v. Mayfield, 93 ■Ky., 234.

H. L. STONE, City Attorney, bob City of Louisviuus.

I. Neither of the cross petitions of appellants, Ormsby and Nichols, stated a 'cause of action against the appellee, City of Louisville. Civil Code, sec. 86, sub-sec. 3.

2. It was lawful to let the work in parcels or by blocks. Middles-boro Town & Land Co. v. Knott, 56 S. W. R,, 205; Anderson v. Bitzer, 49 S. W., 442; Haffey v. Letcher, 9 R., 286; Fox v. Mid-dlesboro Town Co., 96 Ky., 262.

3. The necessity for the sidewalk directed to be made by the ordinance was lawfully determined by the board of public works and general council, and could not be called into question by the abutting lot owners, unless they alleged and proved spoliation of their property. .Skinker v. Heman, 49 'S'. W. Rep., 1026; Worthington v. City of Covington, 82 Ky., 265: Hood, Trustee, v. Town of Lebanon, 12 R., 813.

4. No final judgment in the cross actions of appellants, Ormsby and Nichols.

6. The court has no jurisdiction of appellant Nichols’ appeal.

6. There was no spoliation of appellant’s property, but the work of reconstruction of the sidewalk on Oak street between Third and Seventh streets, which wan necessary and proper.

OPINION OF THE COURT BY

JUDGE HOBSON

AFFIRMING.

These five cases have been heard together, as they arise on the .same record, and involve similar questions. On *5March 12, 1894, the general council of the city of Louisville made an ordinance requiring the sidewalks on both sides of Oak street, between Third and Seventh streets, in front of lots numbered from 300 to 631, inclusive, to be regraded, recurbed, furnished with metal gutters, and repaved with artificial stone, hexagon block pavement. Pursuant to this ordinance a contract was made on May 8, 1894, between the city of Louisville and the Louisville Artificial Stone Company, for the reconstruction of the sidewalks on Oak street between Fifth and Sixth streets, excepting that in front of lots 501 and 503; and on the same date a separate contract was made between the same parties for the reconstruction of the sidewalks on Oak street between Sixth and Seventh streets. Work was begun under these contracts, but the owners of the property along the street protested against the improvement being made. Finally a public meeting was held, at which the mayor was present, and agreed not to let any more contracts for the rest of the work specified in the ordinance. It would seem that he understood this to 'be in the nature of a compromise, and that in consideration of this concession by the city the property owners were to -allow the work that had been contracted for to proceed. But the property-owners do not appear to have had this understanding, and filed suits to enjoin the work being done under the tw-o contracts that had been made. The ground upon which the injunction wa-s -sought was that the existing sidewalks were sufficient and their reconstruction was unnecessary. These suits were decided against the property owners, and the contractor carried out the contracts. Appellants failed to pay their apportionments for the work, and, suit having- been instituted against them by the con*6tractor, resisted recovery on tbe grounds (1) that tbe reconstruction was unnecessary, as tbe existing sidewalks were good; (2) that, tbougb tbe ordinance required tbe reconstruction oí tbe sidewalks from Third to Seventh streets, nothing had been done except between Fifth and Sixth streets; (3) that lots 501 and 503 were excepted out of the contract, and the pavement in front of them was not reconstructed.

It appears from the record that both the contracts were made on behalf of the city by the board of public works, signed by the mayor, and approved' by the general council. It also appears that the work done by the contractor was in accordance with the contract, that it was accepted by the city engineer, that the amount payable by each property owner was apportioned by him, and that the apportionment was approved and- adopted by the general council. If, therefore, there was any error or irregularity in the proceedings, it was that of the general council, and not of any subordinate. Section 2S34, Kentucky Statutes, provides: “A lien shall exist for the cost of the original improvement of public ways, for the construction and reconstruction of sidewalks, and for the digging and walling of public wells and cisterns, for the apportionment and interest thereon at the rate of six per cent, per an-num against the respective lots. Payments may be enforced upon the property bound therefor by proceedings in court; and no error in.the proceedings of the general council shall exempt from payment after the work has- been done, as required by either the ordinance or 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 parties concerned.” The plain purpose of this *7statute was to secure to the contractor payment for bis work when done pursuant to the ordinance or contract. Uncertainty as to payment might be the cause of great loss to the property 'owners, from the fact that contractors, to cover possible losses from this cause, would be unwilling to undertake work as low as they might otherwise do, if there was no uncertainty about the pay. Previous to this statute, from defects in the proceedings, grave losses were sometimes sustained by contractors', although they had faithfully performed their contract. The statute was passed to remedy these evils, by securing to the contractor in his pay where he had faithfully performed his contract, and seems conclusive of the case at bar. It is admitted that the pavement made by the contractor is all right, and really a nice improvement to the property. Whatever irregularities may have been in the proceedings, the work having been done according to the contract, the contractor must be paid. It is immaterial that all the work specified in the ordinance was not included! in one contract, or that part of it has not been let at all, or that two lots on one square were excepted out of the operation of the contract. It does not appear that by any of these things appellants were prejudiced. In a case where such proof is made, the court has full jurisdiction to do justice to the parties, by correcting the apportionment,..or making such orders in the premises as the equity of the case may demand!. But, nothing of that sort being shown, the court below properly gave judgment on the apportionment as made by the general council. The cases sustaining such defenses in suits of this character rest upon. statutes materially different from the one quoted. While the proof is conflicting as to the condition of the old sidte-*8walk when it was torn up, and the preponderance of the evidence would show that it was not, at least, in a bad condition, still it had been down for twenty-two years, and there is nothing in the proof to establish such a state of case as to justify a court of equity in interfering with the decision of the general council in a matter which the law has confided to its jurisdiction. Judgment affirmed.