Worthington v. City of Covington

JUDGE HOLT delivered the opinion oe tiie court. This appeal involves the right of the appellee, the-city of Covington, to compel the appellant, Henry Worthington, to pay an assessment for the improvement of one of its streets, abutting upon his property. Having enjoined its collection, and his injunction, having been dissolved in part by the court below, he now urges various reasons for the reversal of the judgment ; but as one of them is in our opinion decisive of' the matter,.it is needless to notice the others. It is, however, proper to remark that while the council or municipal legislature of a city can not exercise-such an arbitrary and unlimited power as to amount to ■ legislative spoliation, yet the necessity and propriety of' improving a street is a matter in its discretion ; and if an assessment is made by it for such a- purpose, it is final, unless the power has expressly been given to some tribunal to review it; and, upon the former hearing of this case, the attention of the court was not called to the fact that, by an act of the Legislature of " February 24, 1865, the power had been conferred upon the courts to correct, equalize and regulate assessments-made by the council of the city of Covington upon property in that city for street improvements; and that, therefore, the lower court had properly exercised, this power. (Acts of 1865, volume 1, page 412.) [267] Section 12, of an act to amend the charter of the city of Covington, approved March 9, 1868, reads thus : “Hereafter, before any contract shall be made by the-council, for any work to be done in the construction or improvement of any street or alley, and other public-improvement in the city of Covington, the proceedings, of the council, with reference thereto, shall be referred to the committee on law, in conjunction with the city attorney, who shall examine said proceedings and shall, ascertain and report to the council whether said proceedings are regular, and in accordance with the provisions of the charter arid amendments thereto, and whether the city will be liable for the cost of said construction or improvement.” (Acts of 1867-8, volume-2, page 431.) In the case under consideration this was not done, and a contract made by a municipal corporation for the-improvement of a street, must be executed.in conformity to the statute. It is the agent of the law, and authority delegated to-it must be strictly pursued. The power to make the improvement, and then compel the lot owner to pay for it, while not entirely unlimited, is of an absolute character. It is liable to-abuse, and may in some cases be oppressive. It exists by virtue of the statute only, and not by the common law. It can not be enlarged by implication, and the corporation can not compel payment to it by the jjroperty owner, if it has proceeded in violation of, or not in accordance with, the law from which it alone derives its-power. (8 Bush, 508, Broadway Baptist Church, &c., [268] v. McAtee, &c.; 9 Bush., 189, Murphy v. City of Louisville.) In the case of Woods v. The City of Covington (MS. opinion, June 25, 1881), the contractor sued both the city and the lot owner for the contract price of a street improvement, and this court held that the city council had no power to make the contract without first referring their proceedings to its law committee; and that the provision of the charter above quoted was mandatory and not merely directory. Public policy, as well as the protection of private property, demanded this conclusion. The manifest object was to prevent improvident legislation by the city council; to create a circumspect body that would stand between the street contractor ■and the city treasury; between the lot owner and the tax collector ; between the citizen and the almost absolute power of the city council, and see that no wrong was committed. The council, not having taken the steps which gave it a right to contract, or to create a lien upon the lots •of the appellant for the cost of the improvement in ■question, and which -action was a condition precedent to the exercise of its power to do so, or to make the assessment, the judgment below is reversed and cause remanded, with directions to render a judgment making the plaintiff’s injunction perpetual, and for any further necessary proceedings in conformity to this •opinion.