Strassheim v. Jerman

Sherwood, Judge, delivered the opinion of the court. Action on a special tax bill for curbing, guttering and macadamizing Caroline street and paving the cross-walks thereof, in front of the property of defendant, situate in city block No. 1,275. An ordinance, No. 6,583, was approved July 3rd, 1868, by the first section whereof the city engineer was “authorized and instructed to cause” said street between two given points, “to be graded, curbed, guttered, macadamized and the cross-walks and side-walks -to be paved.” The contract for the performance of the above mentioned work was entered into Jiriy 31st, 1868, and the dimensions and manner of such work were duly sefforth therein ; the grading to be paid for by the city, and the residue of the work by speial tax-bills assessed against property owners. Before however, any of such work constituting a charge against such owners was performed, the city by a supplementary ordinance No. 6,962 approved June 29th, 1869, amended ordinance No. 6,583 and a number of others of like sort. The amendatory ordinance declared all contracts yet remaining unfulfilled, which had been made under such former ordinances, valid and binding, upon condition that the contractors would file their written acceptance of such amendatory ordinance with the city engineer, &c., — as was done in the present case, — on the 10th of J uly, next succeeding the passage of the ordinance referred to. By the terms of her charter (§ 9, p. 73, Laws 1867,) the city was empowered through her council, * * * * * “to cause the construction ***** of all streets, alleys and public highways within the city, at such time and to such extent, and of such dimensions and material, and in such manner and under such general regulations, as may [106] be provided by ordinance.” Under and by virtue of the statutory provisions just cited, it was perfectly competent for the city, .where a previously made contract remained unexecuted,to adopt and approve such contract in the way hereinbefore mentioned ; and such adoption and approval upon the conditions specified in the amendatory ordinance No. 6,962, were within the meaning of the foregoing section of the charter, a “providing by ordinance” for the performance of the work which had been contracted for, and the contract of July 21st, 1868, was to all intents and purposes, therefore, a contract made and entered into for the first time July 10th, 1869, when the written acceptance of plaintiff was filed with the city engineer. The fact that a general ordinance (No 5,399) was in existence, providing a specific mode by which the approval of the Common Council of all contracts was to be expressed, did not in any way tend to prevent the adoption of a different method; by subsequent ordinance, for giving like expression to legislative approval; for as a matter of course, the same power which ordained the exaetment of the one ordinance still existed when the second was approved. It was a matter of no importance that ordinance No. 6,583, specified no time at which the work on Caroline street was to be done. This was so ruled in the case of Carlin vs. Cavender, (decided at the present term) in which we held that a similar ordinance conferred on the city engineer a “present authority,” and was sufficiently explicit as to the particular referred to. As the defendant offered no evidence whatever, and as the tax-bill is made by law prima facie evidence of its recitals, it only remained for the court to render judgment in behalf of the plaintiff. But the form of that judgment is under decisions heretofore made by us, open to criticism. That portion of the jndgment, which is personal or general in its character, will be reversed, and’ that portion of such judgment which looks to the enforcement of a lien against the property will be affirmed. The oilier judges concur.