Isenberg v. Selvage

JUDGE PAYNTER

delivered the opinion op the court.

Pursuant to an ordinance regularly passed the city of Louisville entered into a contract with Selvage, by which it was agreed, for stipulated prices, that he was to improve a certain part of Kentucky street by building a carriage way. The appellants own lots abutting on Kentucky street in front of which the improvement was to be made. The contract for the improvement was made in May, 1893. In December, 1893, the city engineer inspected and received the work. This duty was discharged in accordance with the requirements of law in force at the time the contract was entered into. The apportionment warrants were issued by the clerk of the board of councilmen under the order of that board as the law required, which was in force when the contract was made.

The act of the General Assembly for the government of cities of the first class, became a law July 1, 1893. A part of which are sections 2837 and 2839, Kentucky Statutes. Under section 2837 it is made the duty of the board of public, works, its deputy or deputies, to inspect and receive work done under contracts for an improvement, the like of which Selvage made. The owners of property abutting on the street where the improvement *263Is made, their agents and representatives, are authorized to appear and be heard as to whether the improvement has been made in accordance with the ordinance authorizing the same, and the contract therefor. By section 2839 the board of public works are required to make out apportionment warrants. Formerly (under the old charter) this duty was performed by the clerk of the board of councilmen. The board of public works was in existence at the time the engineer inspected and received the work, and at the time the apportionment warrants were issued.

The sole question in this case is whether the engineer was authorized to inspect and receive the work, and the board of councilmen authorized to approve it and direct the apportionment warrants to be issued.

The purpose of the law in providing that the city engineer should inspect the work and receive it, and before doing which to give notice of the time and place that he would do so, was principally to enable the property owners, liable for the expense of such improvement, to be present and be heard. ■

It has been said that the act of such engineer was qtidsi judicial. The board of public works are now charged with the performance of that duty. We think the Legislature had the authority to change the tribunal which should perform that quasi judicial function, and in doing so did not impair the obligation of the contract which had been made with Selvage, or affect the rights of the projierty owners injuriously. Neither the board of public works or any deputy of it inspected and re*264ceived the work, nor did such board issue the'apportionment warrants.

Section 2834, Kentucky Statutes, reads as follows:

“ . . . 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.* * *”

It will be observed by the foregoing section that the general council, or the courts' shall make all corrections, rules and orders, to do justice to all .parties concerned. The board of public works seems not to have acted, but if it had, still the general council has authority to correct what it may have done, and also to make orders to the end that justice may be done. As the city engineer was the party to inspect and accept the work when the contract was made, the council evidently thought that it was just to the contractor and to the property owner that the city engineer should inspect and take up the work which was executed under the contract. It, therefore, made an order which in effect ratified what the engineer did, and directed the apportionment warrants to be issued. This was done in the exercise of the superior authority which was conferred upon it by the law. It was but just to the parties that such an order should have been made. The same section of the law which we have quoted confers authority upon the court to make *265orders so as to administer justice to all concerned. It would work an absolute injustice upon tbe contractor, Selvage, should the court have adjudged that he was not entitled to maintain this action.

The judgment is affirmed.