Dumesnil v. Louisville Artificial Stone Co.

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 [5] March 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 [6] tractor, 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 [7] statute 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 sidte8 walk 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.