Loeser v. Redd & Bro. that the courts could interpose for the purpose of preventing spoliation under the guise of taxation; and that the general council, in assessing the property on one side to the distance of two hundred and fifty-two feet, made the burden grossly unequal, and in violating this rule of equality had exceeded the power conferred by the charter. The court in that case stated in cogent terms that it did not assume to correct the legislative action of the general council, but simply to determine the extent of its power to impose a burden in the way of taxation on the property of the citizen. In this case the burden that was properly imposed has been paid, and the chancellor has no power to say that this burden shall be increased. The tax-payer has paid all that he was required by law to pay, and can be compelled to pay nothing in addition. It may be a hardship on the contractor, yet he must take notice, as well as the citizen, of the ordinance under which he makes his contracts, and when the council exceeds its power by legislating in violation of the constitution, the citizen is not to be held responsible for the consequences. In all the cases referred to by counsel for the appellees, where this court has passed on the question determining the power of the chancellor to cure the errors in the proceedings of the council, it will be found that the question has arisen where the property contiguous to the improvement is bounded by streets or lies within a square, and all that is left to be done under the law in such cases is to determine 'by calculation that equality in the apportionment as directed by the city charter, the law having designated the property to be taxed. (Beck v. Obst, 12 Bush, 268; Preston v. Roberts, 12 Bush, 570; Schmelz v. Giles, 12 Bush, 491.) When the error has been committed under either provision of the charter by the council or others, in the discharge of a mere ministerial duty, the correction may be made; but when legislative, the chancellor has no more power to correct the City of Henderson v. Lambert. error than he has to order the street improvement upon the idea that it will benefit the property-holder. The judgment below is reversed, and cause remanded with directions to dismiss the petition in so far as it attempts to make appellant liable by reason of the failure of the appellees to collect the tax upon the territory embraced by that portion of the ordinance heretofore declared invalid by this court. 14b 24 96 269 14bu 24 111 416 111 593 ell1 687 14bu 24 117 791 CASE 3-PETITION EQUITY-MAY 22. City of Henderson v. Lambert. APPEAL FROM HENDERSON COMMON PLEAS COURT. 1. LOT-OWNERS ARE NOT LIABLE for any part of the cost of street improvements made under a contract with the council of the city of Henderson, in which a part only of the work contracted for was completed by the contractor, and received and paid for by the city council. 2. The council is the agent of the law in making contracts for street improvements, so as to make the cost a charge upon the abutting lots. The work to be done must be ascertained and prescribed in the ordinance and contract. When this is done, certain rights, duties, and liabilities become fixed, and thereafter the duty of the council, so long as the contract remains in force, or is unchanged by proper proceedings, is to see that it is performed as made. 3. By receiving a part of the work and dispensing with the performance of other parts, the city council can not compel the lot-owners to pay for so much as a delinquent contractor may find it convenient or profitable to perform. The council has no power to accept part performance so as to make the owners of abutting lots liable to pay for the work performed. 4. When street improvements have been accepted by the proper authority of the city, and there is no allegation of fraud or collusion, such acceptance is conclusive evidence that the work was performed according to the requirements of the contract. City of Henderson v. Lambert. 5. There is no common-law liability resting upon lot-owners to pay for the improvement of an adjacent street. 6. Statutes authorizing assessments upon abutting lots, to pay for street improvements, must be construed most strictly against those asserting claims under them. VANCE & MERRIT AND TURNER & TURNER FOR APPELLANT. 1. The cost of the improvement was assessed against the property fronting on the street in pursuance of art. 3, secs. 8, 14, of the city charter of 1867, and sec. 16 of the amendment thereto of 1870. 2. Appellant's obligation as abutting lot-owner to pay for the improvement of the street was not affected by the location and use of the railroad in the street. (Railroad Co. v. Applegate, 8 Dana, 289; Railroad Co. v. Brown, 17 B. Mon. 763; Cosby v. Railroad Co., 10 Bush, 291; E., L. & Big Sandy Railroad Co. v. Combs, 10 Bush, 384; Howell v. Bristol, 8 Bush, 495; City of Lexington v. McQuillan's heirs, 9 Dana, 514; City of Louisville v. Hyatt, 2 B. Mon. 177; 8 Bush, 511-517; Louisville v. Rolling Mill Company, 3 Bush, 424; Keasy v. Louisville, 4 Dana, 155.) 3. The acceptance of the work by the council is conclusive as to the manner of its execution. (Murray v. Tucker, 10 Bush, 241; Preston v. Roberts, 12 Bush, 570.) 4. The publication of the ordinance was sufficient. (Dillon's Mun. Cor., pp. 265-269.) It was not necessary that the report of the committee upon the grade of the street should be published. 5. Charges apportioned against property for street improvements are not a tax in the sense of that term as used in sec. of the charter. (Johnston v. Louisville, 11 Bush, 532; Matter of Mayor of N. Y., 11 John. 79.) 6. "No error of the proceedings of the common council shall exempt from payment after the work has been done," etc. (See Caldwell v. Rupert, 10 Bush, 183; Broadway Baptist Church v. McAtee, &c., 8 Bush, 510.) Ordinances providing for street improvements are not void because the council fails to follow strictly its delegated powers. (Sedgwick on Stat. & Con. Law, p. 466; Kniper v. City of Louisville, 7 Bush, 599.) When the city is bound the lot-owner is also bound. This is expressly provided by the charter. MALCOLM YEAMAN FOR APPELLEE. A municipal corporation, by proceedings not conforming in letter or spirit to its charter, can not assess against the owners of property abutting on a street the cost of an improvement which was done against the protest of the owner, was not done in conformity to the contract, and so City of Henderson v. Lambert. badly done as to be utterly worthless, and could not, even if well done, have benefited the property. (Preston v. Roberts, 12 Bush, 575; Hellow v. Bristol, 8 Bush, 499; Hamett v. Philadelphia, 2 Am. Rep. 617; Lexington v. McQuillan's heirs, 9 Dana, 523; Mayor, &c. v. State, Am. Law Reg., July, 1874, p. 441; Washington Avenue Case, 8 Am. Rep. 260; Weber v. Rembold, 13 Am. Rep. 748; Hydes, &c. v. Joyes, &c., 4 Bush, 466; Murray v. Tucker, 10 Bush, 242; Crist v. Brashiers, 3 Mar. 171; Craycraft v. Selvage, 10 Bush, 698; Broadway Baptist Church v. McAtee, &c., 8 Bush, 511; Caldwell v. Rupert, 10 Bush, 183; Charter of 1870 city of Louisville, sec. 12; Charter city of Henderson, secs. 8, 12, 16; Dillon's Mun. Cor., sec. 265.) JUDGE COFER DELIVERED THE OPINION OF THE COURT. The charter of the city of Henderson provides that the improvement of public ways in said city shall be made and done, as may be prescribed by ordinance, at the exclusive cost of the owners of lots fronting or binding on the way improved, according to the number of feet owned by them respectively. The common council provided by ordinance for the improvement of Fourth or Railroad Street in said city, and entered into contract with John Haffy to furnish the material and do the whole work, including grading, guttering, curbing, and graveling the carriageway, according to certain specifications contained in the ordinance and contract, at a specified rate per lineal foot, except the grading, which was to be paid for by the cubic yard. The whole work was to be completed by March 1, 1872, and to be paid for by the city within thirty days after its completion, and the contract stipulated that in case of the failure of the contractor to complete the work by the time agreed upon, a deduction at the rate of ten dollars per day should be made for each day of the continuance of such failure. The work having been paid for by the city, was received long after the time stipulated for its completion. The cost was then apportioned among the owners of lots fronting and binding on the street, and a precept was issued against the appellee for the part of the cost apportioned against lots City of Henderson v. Lambert. owned by him, and he brought this suit against the city and its marshal to enjoin the sale of his property, and to have it adjudged that his property was not liable for any part of the cost of the improvement. The court below granted the relief prayed for, and the city prosecutes this appeal. Learned counsel for the appellee has urged many objections to the validity of the ordinance directing the improvement to be made, as well as to the various steps taken by the council in regard to the work, but we have only found it necessary to consider a single proposition which, in our opinion, must be decisive of the whole case. We therefore assume, without meaning so to decide, that the ordinance, and all subsequent steps affecting the validity of the contract and the liability of the lot-owners, were regular and valid, and that but for the matter we shall proceed to consider, the adjacent lots would be legally subject to a lien for the cost of the improve ment. The contract stipulated that the curb- and gutter-stones should be of certain quality and dimension; that the gutters should be laid in a designated form, on a bed of sand four inches deep, and that the street, after being graded, should be covered with gravel to the depth of eight inches next the gutters and ten inches in the center. A railroad track ran along the center of the street through its entire length, and for considerable portions of the distance there were two tracks in the street. Neither the contract nor the ordinance made any exception on account of these tracks, but both required gravel to be placed over the whole street. The contractor chose to construe the contract as not binding him to place gravel on the center portion of the street, and left a space of perhaps twenty (20) feet through the whole length of the work without putting any gravel on it, and the common council received the work in that condition, although by formal action it construed the contract as binding him to gravel the |