Barber Asphalt Paving Co. v. Garr

Opinion of the court by

JUDGE HOBSON,

affirming in part AND REVERSING IN PART.

By an ordinance approved August 22, 1898, the general council of the city of Louisville provided for the improvement of the carriage way of Chestnut street from Thirty-first to Thirty-fourth street, and by another ordinance, approved on the same day, it provided for the improvement of the carriage way of Chestnut street from Thirty-fourth street to Shawnee avenue. Contracts were made with the Barber Asphalt Paving Company for the construction of the street under the ordinances. The.company complied with its contract. The work was examined and accepted by the city. The cost was apportioned among the owners of property fronting on the street, and apportionment warrants were issued therefor. A number of these warrants remaining unpaid, the company instituted two actions in the Jefferson circuit court to enforce them. "Answers were filed by the property owners controverting their liability for the improvement, and on final hearing the circuit court held that the property between Thirty-first street and Gaar’s Lane, or Fortieth street, was liable to assessment for the improvement, and the lien of the plaintiff was ordered to be enforced; but as to the property between Gaar’s Lane, or Fortieth street, and Shawnee avenue, it held that the city had no authority to improve the street at the cost of the adjacent landowners, and it accordingly rendered judgment in favor of the defendants and against the contractor as to. this property, but entered a judgment in favor of the contractor against the city for the amount of these warrants. From this judgment the four appeals before us are prosecuted.

In Barber Asphalt Paving Co. v. Gaar et al., the contractor complains of that portion of the judgment denying it relief against the property lying between Fortieth street and Shawnee avenue. In City of Louisville v. Barber Asphalt Paving Co. the city complains of so much of the judgment as makes it liable for this part of the improvement. In Cornelius Walsh at al. v. Barber Asphalt Co. the owners of property from Thirty-fourth street to Fortieth street complain of so much of the judgment as holds their land liable for the cost of constructing the street in front of it. In Raffo et al. v. Barber Asphalt Paving Co. the owners of property from Thirty-first to Thirty-fourth street complain of the judgment holding their property liable.

The last two appeals are prosecuted separately, as two separate actions were brought in the circuit court, and the questions made are not identical in some respects. For convenience all the appeals will be considered together. The -city of Louisville purchased Shawnee Park something over ten years ago. At that time it lay without the city limits, but in the year 1894 the city limits were extended, so as to-take in the park. This was done by taking into the city a narrow tongue of land 460 feet in width and something over a mile long, extending from a line 200 feet west of Thirty-fourth street to Shawnee avenue. Sixty feet of this strip throughout its entire length was taken up by Chestnut street, leaving a strip 200 feet wide on each side of it. This extension of the city limits appears to have been made without protest on the part of the property owners. After the territory was taken into the city, the county authorities ceased to keep the roadway in order, and, there being considerable travel on it, it got in very bad repair in the four years elapsing after it was taken into the city before the improvement was ordered. Some of the property owners were active in procuring the council to order the improvement, others were silent, and some held a meeting and protested, but they took no active steps to prevent the improvement being made as directed in the ordinances. The first of the ordinances under which the work Was done is in these words:

“Be it ordained by the general council of the city of Louisville: That the carriage-way of Chestnut street from the center line of Thirty-first street to'the center line of Thirty-fourth street extended from the north, shall be thirty-six (36) feet in width, and shall be improved by grading, curbing and paving with the asphalt pavement, with corner stones at the intersections of streets and alleys. Said work shall be done in accordance with the plans and specifications on file in the office of the board of public works and at the cost of owners of ground on' the south side of Chestnut! street from Thirty-first street to the center line of Thirty-fourth street extended from the north and extending back to a line 171 feet distant from and parallel to Chestnut street, and on the north side of Chestnut street from Thirty-first street to Thirty-fourth street as provided by law. The cost to be equally apportioned among the owners of property according to the number of square feet of ground owned by the parties respectively within the limits as above set out, and that all ordinances in conflict herewith be and are hereby repealed.”

The other ordinance is similar, except that after providing for the improvement, it is as follows:

“Said work shall be done in accordance with the plans and specifications on file in the office of the board of public works and'at the cost of owners of ground on the north side of Chestnut street from the center line of Thirty-fourth street to a line at right angles to Chestnut street, passing through a point where the center line of Shawnee avenue extended from the south intersects the center line of Chestnut street and extending back to a line 171 feet distant from and parallel to Chestnut street and on the south side of Chestnut street from the center line of Thirty-fourth street extended from the north to á line at right angles to Chestnut street, passing through a point where the center line of Shawnee avenue extended from the south intersects the center line of Chestnut street and extending back to a line 171 feet distant from and parallel to Chestnut street. The cost to be equally apportioned among the owners of property according to the number of square feet of ground owned by the parties respectively within the limits above set out, and that all ordinances in conflict herewith be and are hereby repealed.”

At the time the ordinances were passed there were general specifications, which had been printed, on file in the office of the board of public works, but the contract was not made according to these specifications. The board, according to its custom, prepared, after the ordinances were passed, plans and specifications for the work, and the contract was made thereunder. By section 4 of the .specifications the guttering was to be made of flagstones. After the contract was let, the board of public works, by a written contract with the contractor, changed this, and allowed the guttering to be made of asphalt. By section 22! of the specifications the contractor was required to erect a permanent plant in the city limits, which should remain there during the time of the guaranty period — five years. The specifications were in the alternative for either asphalt pavement No. 1 or asphalt pavement No. 2. The advertisements were so made. Bids were received on both classes of pavement, and the board accepted the bid for pavement No. 1. The difference between No. 1 and No. 2 consists in the thickness of the pavement, No. 1 being thicker, and costing something over $2 more per square of 100 feet than No. 2. The specifications also called for a binder course underneath the asphalt or surface pavement. Madison street runs parallel with Chestnut and 340 feet from it on the north. Magazine street runs parallel with Chestnut, and is 420 feet from it on the'south. The tax limits for the improvement are fixed at 171 feet on the south side of Chestnut, as well as on the north side, while one-half the distance to Magazine street is 210 feet. The apportionment was made as to each fourth of a square from! Thirty-first street to Thirty-fourth street, and from Thirty-fourth street to Shawnee Park the apportionment was made from one cross-street to the next, this territory not being defined into squares by principal streets.

It is insisted for the property owners that the proceedings are void, and created no lien upon the property for the following reasons: (1) Because the contract was not made in accordance with the general specifications in existence when the ordinances were passed, and a discretion as to the amount and the cost of the work to be done was left by the lawmaking body to an executive board. (2) Because the material for part of the work was unlawfully changed from that required by the ordinance and contract, and something else was received in place of it. (3) Because both the ordinance and the specifications tended toward stifling competition, and imposed on the lot owners burdens which they ought not to bear. (4) The burden was thrown on the property extending back from the street 171 feet, and not 210 feet or half way to Magazine street on the south from Thirty-first to Thirty-fourth street, and west of Thirty-fourth street to Shawnee avenu'e the burden was thrown on the property running back 171 feet from the street on both sides, while the city boundary along here extended out 200 feet from the street, and thus 29 feet of land within the city boundary was exempted from the burden. (5) The territory contiguous to Ghestnut street from Thirty-fourth street to Shawnee avenue was not defined into squares by principal streets, and there existed no authority in the general council to prescribe by ordinance for the construction of an improvement for more than a mile in length at the cost of the owners of lots contiguous thereto to at depth of only 171 feet, to be apportioned equally, as set out in the ordinance. (G) This territory was in part suburban and in part agricultural,, and to enforce the lien on the land is to appropriate the property of the citizen to public use without compensation therefor to the owner. These objections will be considered separately.

1. It was held in Richardson v. Mehler, 111 Ky., 408 (23 R., 917), (63 S. W., 957), where the ordinance directed the street to be improved with vitrified brick- or block pavement “in accordance with the plans and specifications on file in the office of the board of public works,” that the words, “in accordance with the plans and specifications on file in the office of the board of public works,” might be rejected, and that the ordinance without these was sufficient. We see no reason why the same rule should not apply to an ordinance requiring the improvement of the street with asphalt pavement. It is clear from the proof that it has been the uniform custom of the board of public works in each case where an improvement is ordered to prepare after the passage of the ordinance plans and specifications as the exigencies of the particular work demanded, and we must presume that the board of public works, in recommending the ordinances in question, and the general council in passing them, acted in view of this well-known custom of transacting the business, and did not refer to the general specifications theretofore printed and on file in the engineer’s office, which were in fact never considered in making the contract. By section 2826, Kentucky Statutes, 1894, no public way shall be constructed except by ordinance recommended by the board of public works. By section 2829, whenever the board shall order any work to be done, which, according to law, is to be performed by independent contract, the board shall prepare and place on file in the office of that department complete drawings and specifications of the work, and thereupon shall cause notice to be published of the fact that the drawings and specifications are on file, and calling for .sealed proposals' for the work. By section 2830, when, in the opinion of the board, it becomes necessary in the prosecution of any work to make alterations or modifications in the specifications or plans of a contract, such alteration or modification shall be made only by order of the board, and the order shall be of no effect until the price to be paid shall be agreed! upon in writing, signed by the contractor and approved by the board. These three sections must be read together, and evince, when taken together, a purpose on the part of the Legislature in creating the board of public works, to vest in it, where the council has directed an improvement in general terms, the power to carry out in detail the work so directed, on the idea that in the matter of these details the board of public works is better calculated to look into each and properly guard the interest of the city than the general council can possibly be with the limited time at its disposal.

If the board had made plans and specifications for only asphalt pavement No. 1, and had advertised only for bids on this, it could not be maintained, under the rule laid down in the case referred to, that the contract was invalid. The fact that it advertised for alternative bids: on pavement No. 1 and on one that was thinner, but rejected the bid for the thinner pavement, is of no more effect on the contract than if they had advertised alone for bids on the thicker pavement. The council having simply directed the pavement to be laid with asphalt, and of a certain width, the board was left by the statute with a discretion as to the details of the construction of the pavement, these not having been prescribed by the council. We think this is the fair meaning of the statute, and that the power to pass on the depth of the pavement is necessarily carried with the power to make plans and specifications and to control other matters of minutiae, such as whether there shall be a binder course, or 'whether a certain quality of asphalt shall be used.

2. What we have said disposes of the second objection. The ordinance was silent as to how the gutters should be constructed. This the council left to be regulated by the board of public*works with the other details of the contract: in the plans and specifications. The board stipulated'in the contract for flagstone gutterings, but afterwards, in the prosecution of the work, as provided by section 2830, modified the specifications by a contract in writing, signed by the contractor and approved by the board, substituting asphait guttering for the flagstones. The change was in the interest of the property holders, for the asphalt was cheaper than the flagstones. There is no evidence that more than a fair price was paid for the substituted guttering, or that the board abused a sound discretion in making the change. The presumption is in favor of their official action, and, in the absence of proof, it can not be assumed that the change was made in the interest of the contractor, or that any injury resulted therefrom to the property owners.

3. The objection that the ordinance and specifications tended toward stifling competition is based on the specifications made before the ordinance was enacted. The specifications prepared by, the board of public works after the ordinances were passed seem to contain nothing which is fairly liable to objection on this ground, and, as the contract was not made under the other specifications, it was not affected thereby. Tt is not an unreasonable requirement on the part of the city that the contractor shall guaranty the pavement for five years, for there are many defects which are not discoverable at first, and the guaranty of the pavement for five years secures the city against a construction of the street in a manner or with material insufficient for the purposes contemplated. The requirement that the contractor shall maintain a permanent plant in the city during this period is reasonable, for in the case of an asphalt street, especially, the repairs must be made promptly and properly. The city ha!d a right to protect itself, not only by the bond of the contractor, but by a reasonable requirement securing the performance of the bond, and relieving it of the necessity of litigation. The cost of the permanent plant was small as compared with the contract, and a large discretion is given the city authorities in matters of this sort, which the courts will not interfere with unless palpably abused..

The ordinance requiring the payment of a license fee by contractors was held unconstitutional by this court. Being unconstitutional, it was a nullity. From a nullity no rights can arise, and by it no rights are affected. The ordinance being void, the contractors had a right .to ignore it. They could not be required to pay anything under it, and, if they did pay anything they were entitled to recover it on demand. We are unable to see, therefore, that there was anything in the ordinance or specifications looking toward stifling competition, or imposing on the lot owners burdens] which they ought not to'bear.

4. The rule is that, unless it appear that under a different method of apportionment the party complaining would be required to pay less than under the method adopted, the apportionment as made by the city authorities will not be disturbed. McHenry v. Selvage, 99 Ky., 232; 18 R., 473; 35 S W., 645; Barrett v. Falls City, etc., Coal Co., 21 R., 669; 52 S. W., 947; Chawk v. Beville, 21 R., 1769; 56 S. W., 414; Levy v Coyne, 22 R., 493; 57 S. W., 790. We are unable to see from the record that the property owners on the south side of Chestnut street between Thirty-first andi Thirty-fourth streets were in any wise prejudiced by the act of the council in fixing the depth of the taxing district at 171 feet. The council seems to have acted upon the idea that this would be one-half the distance to the next street when the streets on the ¡south were extended through this territory; and whether they were correct in this or not we need not consider, as it is not shown that any of the property holders complaining would have had to pay less if the depth on the south had been fixed at 210 feet; and the fact is we are by no means clear from the proof that the council made a mistake as to the territory lying between Thirty-first and Thirty-fourth strets. The territory lying west of Thirty-fourth street not being defined into squares by principal streets, the council was authorized in the ordinance to prescribe the depth on both sides fronting the improvement to be assessed for the cost of making it, and we see nothing in the evidence to show that the council abused a sound discretion in fixing the depth on each side at 171 feet.

5. This disposes also of the fifth objection, for if it be admitted that the ordinance should not have directed the cost of the improvement for more than a mile in length to be apportioned among the owners of lots contiguous thereto throughout its entire length, it is not shown that appellants were in anywise prejudiced by the apportionment which was in fact made, and, if the apportionment was wrong, it would be incumbent on the court, under section 2834, Kentucky Statutes, 1894, to correct it so as to do justice to all parties concerned. No cause is, therefore, shown for disturbing the judgment on this ground.

6. In Oswald v. Gosnell, 21 R., 1660, 56 S. W., 165, where an ordinance for the erection of fire hydrants in this territory was before the court, we held that all the steps in the annexation of the territory to the city had been legally taken and that the territory was properly a part of the city. Fire hydrants have been located along the street from Thirty-first street to Shawnee avenue. Water and gas mains have been laid. The street is illuminated by electric lights. City police control the district. The city firemen furnish it fire protection. A bus line is maintained from Twenty-eighth street to Shawnee avenue. Property along the street as improved is numbered according to the scheme prevailing throughout the city. As far west as Fortieth street the land is cut up into building lots with a few small exceptions, and between Fortieth street and Shawnee avenue several fine houses have been built. Sewer connection has been furnished. A number of parallel projected streets north and south of Chestnut street have been dedicated in the several additions made to the city, and, as shown by the photographs of Chestnut street from Thirty-fourth street to Shawnee avenue, it presents throughout the appearance of a city street. Before the construction of the street the property fronting on it gold for prices ranging from $10 to $12 a front foot; since its construction it has ranged in price from $15 to $22 a foot. The street cost something over $4 a foot, and under all the evidence we are satisfied the benefit to the property from the construction of the street as a whole from one end to the other exceeds the cost of the work. This is so evident from the proof that in the elaborate argument of the case no objection was made by any of the counsel to the assessment on the ground of want of benefits. While some of the land is used for truck farming, it is all suitable for residence purposes, and is very desirable therefor. The value of the land by the front foot and character of houses that are erected along the street show that it is only a question of a short time when it will be all cut up into building lots. The annexation had been contemplated for a number of years before it was made, the construction of the street was a necessity at the time it was ordered, and without it the building up of this territory would necessarily have been much retarded. Land within the limits of a city, although used for agricultural purposes, is subject to local assessment for street improvements, under such circumstances as are shown here. In Smith on Municipal Corporations, section 1236, the rule is thus stated: “Property within the limits of a city, which is unplatted, is liable to special assessment for local improvements, as if laid off into blocks and lots; and so farming lands within the limits of a town are subject to taxation by the-town authorities, and it is not essential that they receive benefits and protection. Urban property may be assessed for a local improvement, though not divided into lots, and though used for farm purposes, if the surounding property is urban property. It is sometimes difficult to determine whether the property is city property, and liable for local improvements, or whether it is rural, and not subject to assessment. No hard and fast rule on the subject can be laid down. It necessarily depends on the special circumstances of each case.” In determining the liability of the property for the cost of the improvement after it has been made, the court has a very different question before it than would be presented if the objection was now made to the annexation of the property between Fortieth street and Shawnee avenue, and the propriety of the annexation was the question to be determined, or even if the property owners had enjoined the construction of the street at their cost when ordered by the council. But they stood by, and' allowed the improvement to be made, and, without notice to him, allowed the contractor to expend his money in making it upon the faith that the cost was to be a charge upon the abutting property. This distinction has often been pointed out by this court. Preston v. Roberts, 75 Ky. 570; Fehler v. Gosnell, 99 Ky., 380; 18 R., 238 (35 S. W., 1125); Richardson v. Mehler, 111 Ky., 408 (23 R., 917); (63 S. W., 957). In Elliott on Roads and Streets, section 590, it is well said: “The fact that a street is being improved by order of public officers ought to put the property owner upon inquiry, and to him should be applied the familiar rule that one put upon inquiry is chargeable with notice of all the facts which a reasonably diligent investigation will disclose. Public works are undertaken, as every one knows, under authority delegated by law to public officers, and there is little or no reason why a property owner, who has full notice of what is being done, should be allowed to stand by in silence until the work is completed, and then escape paying for the benefit his property has received. If he would avoid this result, he should act promptly, and, if he fails, he should not demand that the persons who have done the work should go unpaid.” We have been referred to no provision of the Constitution or statutes under which property within a city may be exempted from assessment for municipal improvements by the bare fact that the land is used for agricultural purposes. There is nothing in the case to warrant tte application of the rule forbidding the taking of private property for public uses without just compensation. Considering the benefit which this property receives from the improvement, the size of the city of Louisville, its growth in the direction of Shawnee park, the value of the property by the front foot, its situation and surroundings, we are satisfied that under the rule established by the current of authority none of the land, after the improvement has been made, should be exempted from paying for it. Leitch v. LaGrange, 138 Ill., 291, 27 N. E., 917; Taber v. Grafmiller, 109 Ind., 206, 9 N. E., 721; Medland v. Linton, 60 Neb., 249, 82 N. W., 866, and cases cited. The case of Graham v. Conger 85 Ky., 583, 11 R., 12, 4 S. W., 327, involved the constitutionality of a legislative act taxing the abutting property for the improvement of a county road. This was not city property or a city highway. The case rests on the idea that the burden of keeping the road up was by general law placed on the entire county, and that the charge on the abutting property was so great as to amount to spoliation. The cases of Washington Avenue, 69 Pa., 352, 8 Am. Rep., 255, and Craig v. Philadelphia, 89 Pa., 265, are equally inapplicable.

On the appeals in Barber Asphalt Company v. Gaar and of City of Louisville v. Barber Asphalt Company, the judgment is reversed, and cause remanded, with directions to enter a judgment as above indicated. On the appeals in Cornelius Walsh v. Barber Asphalt Company and Mary H. Raffo v. Barber Asphalt Company the judgment is affirmed.

Petitions for rehearing overruled.