Barfield v. Gleason

63 S.W. 964, 111 Ky. 491, 1901 Ky. LEXIS 215

• Court: Court of Appeals of Kentucky
• Decided: June 22, 1901
• Status: Published

Opinion

Opinion op the ■ court by

JUDGE DuRELLE

Reversing.

The action first named was brought by the contractor against a number of persons- owning property on Catalpa street, to subject the property to the payment of an assessment made for the original improvement of Catalpa street between Woodland avenue and Gibson lane. The petition was in the usual form in such -cases, and sufficiently alleged in detail the various steps necessary to create a lien for the cost of the construction. A copy of the ordinance authorizing the improvement, the contract therefor, and the- apportionment, properly- attested • by the comptroller, were filed, as required by Kentucky Statutes, section 2838, to establish prima facie evidence- of' the facts necessary to entitle the contractor to the relief he sought. An answer was filed by appellants, by the first paragraph of which practically all of the affirmativeaverments of the petition were denied, and the remaining seven paragraphs of which present various affirmative defenses, which will be stated as we consider them, in this opinion. The material .averments > of this answer were-denied by the reply. An amended answer was subsequently filed by appellants, by which they undertook to set up the defense that the city had no power to authorize the construction of the street at the cost of the abutting property holders; that the assessment for that cost was-unconstitutional, because not uniform, and not assessed upon an ad valorem basis; and, further, that the assessment was a taking of property without due process of law. The contractor filed an amended petition, praying judgment against the city of Louisville for any part of the apportionment warrants for which it might be determined that no lien existed in his favor. A number — but possibly not all — of .the appellants filed an amended answer, which they made a cross petition against the city, amplifying the averments of certain of the paragraphs of their original answer, and alleging that the city had contracted with one McNaghton for the construction of the same improvement at a much lower rate than that at which the contract was subsequently awarded to Gleason; that, without reason or right to do so, McNaghton was- released from his contract, together with his solvent surety, and thereby the cost of the work to the appellants was increased at least twenty-five per cent.; that by reason of the ordinance providing for the improvement, and the work done- In pursuance of it, a large amount of excavation, which was totally unnecessary, and not a public improvement, was done, and the cost thereof charged against appellants in the sum of over $1,000, and that, if there is any liability for the excavation, it should be charged against the city; and they prayed judgment against the city for the amounts charged against them respectively. To this cross petition a demurrer by the c,ity was sustained. Several hundred pages of testimony were taken upon the issues of fact, and almost an equal quantity of briefs filed upon the facts and the legal propositions presented. The trial court decided the questions of fact adversely to appellants, and, as the contract contained the provision for'repairs of the improvement for five years, which was condemned by this court in Fehler v. Gosnell, 99 Ky., 394 (18 R., 238), 35 S. W., 1125, judgment was rendered enforcing the lien for ninety per cent, of the amount of the assessment.

The case of Kimberger v. Bitzer—the second case named in the caption — presents almost exactly the same state of pleadings and facts. The cases were heard together in the trial court and in this court, and will be considered together in this opinion.

The questions presented are so numerous, the arguments thereon so voluminous, and the time remaining to us so short, that in these cases, as in the case of Richardson v. Mehler, 111. Ky., 408, 23 R., 917 (63 S. W., 957), we shall not attempt more than a brief statement ofi the facts, the questions, and our conclusions, making no reference to the questions disposed of in the Richardson case.

Questions of Fact.

It is not necessary to state or consider all of the questions of fact raised in this record. A sufficient statement will be made to show the general nature of the questions and the conclusions we have reached. Catalpa street was originally a public way of the town of Parkland, a suburb of the city of Louisville. It was claimed originally by the appellants that it had for a long time been a public way, dedicated to public use, and had been graded and improved. This claim was altered substantially by a denial of the dedication and a denial of the annexation of Parkland. The testimony offered clearly shows that long prior to the annexation it was in general use by the public as a public way; that it‘had been worked about as much as an ordinary dirt road is usually worked in the county outside of the city. Joyes v. Shadburn, 10 Ky. Law Rep., 493. Owing to the sandy nature of the soil, it was, in wet weather, rather better than most of the country roads under like conditions. Its surface, except where affected by the travel over it and by the working referred to, practically conformed to the natural surface of the soil. It appears reasonably certain thlat it answered the purposes of the neighborhood, and that the property holders strenuously objected to its improvement as a city street on account of the expense. I't is reasonably certain also that no such work was done upon this street as ■could, in any just sense, be considered the construction of a street. The mere grading of a dirt road so as to form a crown, and to leave depressions a,t the sides for surface drainage, and the leveling of inequalities, does not constitute a street construction. Ormsby v. Jamison, 9 Ky. Law Rep., 325; McHenry v. Selvage (99 Ky., 232) (18 R., 473) (35 S. W., 645); Mackin v. Wilson (20 R., 218), (45 S. W., 663). It is reasonably certain also that while, for the purposes of the city of Louisville, there existed a necessity that this street, or some other of the adjacent streets, should be improved so as to make an inlet to the business portion of the city fon city limits, yet some other street — such as Twenty-sixth street — might just as well have been selected for the purpose. The weight of the testimony is decidedly in favor of. the proposition that the selection of the elevation at which the street was to be built, and the fixing of that elevation by the counsel on the recommendation of the board of public works, was injudicious, for the reason that it required an unnecessary amount of excavation to bring the surface to the proposed level, and did not accomplish the result intended as to surface drainage of the adjacent territory. We. can not but believe that the fixing of the level resulted in distinct injury to such of the abutting property as was already situated at an acceptable height above the original level of the road. The testimony tends to show' that the McNaghton contract was to make the improvement with a better brick than that finally used, and at a very advantageous price to the property holders. There are some suspicious circumstances shown with regard to the condemnation by the board of the brick which were used for the improvement of other streets for which McNaghton had obtained contracts in that neighborhood, and which condemnation is claimed to have resulted in his release, and also with regard to the charge of favoritism shown to the Bannon brick, which were used in the improvement as made; but there is no showing that the contractor who constructed the improvement had any connection whatever with this. The Ohio brick called for by McNaghton’s contract are shown quite conclusively to be, in general, better brick than the Bannon brick. On, the other hand, the evidence is quite conflicting as to the quality of the particular, lots of Ohio brick which were condemned for use upon the other streets. The relationship between Mr. Bannon, the manufacturer of the Bannon brick, and- Mr. Nevin, of the board of public works, relied on as tending to establish fraud and favoritism in the rejection of the Ohio brick, and the acceptance of the Bannon brick, in the second contract, proves to consist in the fact that the first wives of Bannon and Nevin were sisters. Both of these ladies, however, were dead some twenty years before the matters in dispute occurred. The evidence tends to show also that, while McNaghton himself was probably insolvent at the time of his release, the National Surety Company, which was his surety upon his bond, was perfectly solvent, and that it was improvident upon the part of the board of public works to recommend^ and the council to adopt, a resolution releasing him therefrom; the only, showing made in support of the release being his request for release, his statement that he was insolvent, and the consent of the surety company that he be released, provided the company was relieved from “reliability” upon his contract. At the second bidding under the ordinance no contract was let. At the third bidding the contract was let to Gleason at substantially the ajame bid he had made at the second bidding, and which was about 33 per cent, higher than the McNaghton contract. A number of .apparently sufficient reasons can be suggested for the difference in the bids. The general ordinance referred to in the ordinances for the improvement of the streets required a contract to keep the streets in repair for five years, and required also the putting up of collateral security to secure such repairs. The temper of the property holders was such as to almost insure tedious and costly litigation over the cost of the improvement, and the experience of McNaghton with his other contracts in the vicinity might well have acted as a deterrent to bidders. The street was undoubtedly a costly one, — probably the most costly brick street ever constructed in Louisville. The increased cost seems probably to be due more to the excavation than anything else, though the long haul of materials, necessitated by the locality, undoubtedly contributed somewhat to it.

The Oonstitutionality of the Kentucky System of Apportionment.

Little time need be spent in considering the question whether the square-foot system of apportionment adopted in this State for cities of the first class, by section 2833, Ky. St., is objectionable under the Kentucky Constitution. The general doctrine is well stated by Dillon as follows: “The courts are very generally agreed that the authority to require the property specially benefitted to bear the expense of local improvement is a branch of the taxing power, or included within it; and the many cases which have ■been decided fully establish the general proposition that ia statute authorizing the municipal authorities to open or establish streets, or to make local improvements of the character above mentioned and to assess the expense upon the property which, in the opinion of the designated tribunal or officers, shall be specially benefited by such street •or improvement, in proportion to the amount of such benefit, or upon the abutters in proportion to benefits or frontage or superficial contents, is, in the absence of some special constitutional provision, a valid exercise of the power of taxation. Whether the expense of making such improvement shall be paid out of the general treasury, or be assessed upon the abutting property, or other property specially benefited, and, if in the latter mode, whether the assessment should be upon all property found to be benefited, or alone upon the abutters according to frontage, or according to area of their lots, is, according to the present weight of authority, considered to be a question of legislative expediency, unless there is some special restraining-■constitutional provision upon the subject. Whatever limitation there is upon the legislative power of taxation (which includes the power of apportioning taxation) must be found in the nature of the power and in express constitutional provisions.” 2 Dill. Mun. Corp., sec. 752. See, also, Cooley, Tax’n, 459, 460; 2 Beach, Pub. Corp. sec. 1175; Elliott, Roads & S., sec. 396. In Kentucky there is a long-line of decisions to the same effect, beginning with the opinion of Judge Robertson in City of Lexington v. McQuillan’s Heirs, 9 Dana, 513, 35 Am. Dec., 159; City of Louisville v. Hyatt, 2 B. Mon., 177, 36 Am. Dec., 594; Id.,5 B. Mon., 199,—in which the area mode of assessment has been sustained. In Baptist Church v. McAtee, 8 Bush, 510, 8 Am. Rep., 482, the doctrine, together with the constitutional limitation, is thus stated by Judge Lindsay: “It is certainly well settled in this State that the cost of the original construction of streets of a city may be imposed upon the owners of real estate alone without violating the constitutional limitations upon the legislative power of taxation. ... In proportion as the trade and population of a city increases, the value of real estate advances. The owners of such real estate receive and enjoy very nearly the sole permanent advantages accruing to the city from the construction, repair; and reconstruction of the streets upon which that property may be situated. The general public certainly receive incidental benefits from such improvements, but the benefits to owners of real property are directly appreciable and permanent. The original improvement enhances the value of lots adjacent to the streets improved by making it accessible to the public, and attracting trade and population.” See, also, Preston v. Roberts, 12 Bush, 570, Nevin v. Roach, 86 Ky., 492 (9 R., 819), 5 S. W., 546, and Watson v. Nevin, Id. The same doctrine has been again and again affirmed in cases arising under the new Constitution. Gleason v. Barnett (106 Ky., 125) (20 R., 1694) 50 S. W., 67; Gosnell v. City of Louisville 104 Ky., 201 (20 R., 539) 46 S. W., 722; McNaghton v. Industrial School (19 R., 1695) 44 S. W., 380. This question is no longer an open one.

Spoliation.

The act being constitutional, does this case present such an arbitrary exercise of power thereunder as to work manifest injustice, and come within the rule announced by Judge Holt in Preston v. Rudd, 84 Ky., 156 (7 R., 806), as being spoliation and not taxation? In that case the rule was thus announced:. “Such assessments are made upon the assumption that a portion of the community are specially benefited by the improvement. The principle is that the territory is benefited; that it has common interest; and ..that, governed by equitable rules, it must equally bear the burden. Necessarily individual cases of hardship will arise; but it approaches equality .as nearly as is practicable.- It follows that a lot owner may be compelled to pay his proportion of the cost of an improvement, although in his particular casé his property may not be benefited.” This rule, however, can not be so extended as to entirely take from the citizen his property. This would work a “manifest injustice.” It would be a spoliation and not taxation. Under the guise of benefit and taxation, he can not be thus arbitrarily deprived of his property. t would be but an appropriation of it, by the exercise of arbitrary power, to public use without compensation. The assessment there was held to be an arbitrary and unconstitutional taking of property. But in the case at bar the showing on behalf of the property holders falls very far short of presenting a case of spoliation. The weight of the evidence tends very strongly to the conclusion that the abutting property was benefited by the making of the street, but that some of it was injured by the- change ■of grade, perhaps to a greater extent than it was benefited by the street. The damage resulting .from the ■ change of grade will be considered later. Leaving that damage out of consideration, there can be but little doubt from the testimony that the street as constructed was a benefit to adjacent property. The testimony. of the witness Pearson, formerly city engineer, seems to us conclusive upon that point. Whether the benefit was as great as the cost is another question.

While this system of taxation for local improvements proceeds upon the theory of equivalents, exact compensation has never been deemed attainable; or even hoped for, under any system of law yet devised. The question whether the contiguous territory would be benefited, and the boundary within which benefit therefrom is to be presumed, has uniformly been construed to be a matter of legislative discretion; and, that discretion having been exercised with the presumption of law in favor of its correctness, the courts will not intervene to disturb the legislative determination, except upon a showing of fact so conclusive as amply to justify their interference. No such showing is made by this record. The witnesses for appellants almost uniformly base their evidence that the improvement was harmful, rather than beneficial, upon the injury occasioned by the change of grade, and the increased cost occasioned by the reletting. In Village of Norwood v. Baker, 172 U. S., 278; 19 Sup. Ct., 190; 43 L. Ed., 447, Mr. Justice Harlan, speaking for the court, thus stated the doctrine upon this question: “Undoubtedly abutting owners may be subjected to special assessments to meet the expenses of opening public highways in front of their property; such assessments, according to well-established principles, resting upon the ground that special burdens may be imposed for special or peculiar benefits accruing from public improvements. Mobile Co. v. Kimball, 102 U. S., 691, 703, 704; 26 L. Ed., 238; Illinois Cent. R. R. Co. v. City of Decatur, 147 U. S., 190, 202; 13 Sup. Ct., 293; 37 L. Ed., 132; Bauman v. Ross, 167 U. S., 548, 589; 17 Sup. Ct., 966; 42 L. Ed., 270, and authorities there cited. And according to the weight of judicial authority the Legislature' has a large discretion m defining the territory to be deemed specially benefited by a public improvement, and which may be subjected to special assessment to meet the cost of such improvements. In Williams v. Eggleston, 170 U. S., 304, 311; 18 Sup. Ct., 617, 619; 42 L. Ed., 1047, 1050, where the only question, as this court stated, was as to the power of the Legislature to cast the burden of a public improvement upon certain towns, which had been judicially determined to be towns benefited by such improvement, it was said: ‘Neither can it be doubted that, if the State Constitution does not prohibit, the Legislature, speaking generally, may create a new taxing district, determine what territory shall belong to such district, and what property shall be considered as benefited by a proposed improvement.’ ”

So, in Preston v. Roberts, 12 Bush, 570, in an opinion by Judge Cofer, it was said: “All municipal assessments are based on the ground that the property subject to assessment is benefited by the improvement for which the assessment is made, and neither the Legislature of the State nor the municipality can constitutionally subject property not actually or presumptive^ benefited by an improvement to assessment to pay the cost of such improvement. It is often difficult, and sometimes impossible, to determine the exact limit to which such benefits extend; •but, from the very nature of the subject, there must be .■authority somewhere to consider that question; and there is, perhaps, no safer mode of dealing with a question environed by such difficulties than to confide the power to the local government, to be exercised subject to supervision by the courts, where the peculiar facts of each' case can be examined and the controversy determined by those rules and principles wliicli have always governed courts in dealing with questions of assessments and taxation.” And see Nevin v. Roach, 86 Ky., 493 (9 R., 819), 5 S. W., 546. In Kelly v. City of Pittsburg, 104 U. S., 78, 26 L. Ed., 659, Mr. Justice Miller said: “it may be true that he does not receive the same amount of benefit from some or any of these taxes as do citizens living in the heart of the city. It probably is true, from the evidence found in the record, that his tax bears a very unjust relation: to the benefits received as compared with its amount. But who can adjust with precise accuracy the amount which each individual in an organized civil community shall contribute to sustain it, or can insure in this respect--absolute equality of . burden and fairness in their distribution among those who must bear them?” In Wight v. Davidson, 181 U. S., 371, 21 Sup. Ct., 616, 45 L. Ed. —, an appeal from the District of Columbia, it was said April 29, 1901, by Mr. Justice Shiras: “Special facts -showing an abuse or disregard! of the law, resulting in an actual deprivation of property, may give grounds for applying for relief to a court of equity; and this was thought by a majority of this court to have been the case in Village of Norwood v. Baker.” So, in Baptist Church v. McAtee, 8 Bush, 517, 518, 8 Am. Rep., 486, 487, Judge Lindsay, speaking for the court, said: “The power to impose this character of taxation must to some extent depend upon the fact that the persons taxed are correspondingly benefited by the expenditure thereof. 'The courts would hesitate to interfere in cases in which it may be -a question of doubt as to whether the persona taxed .receive commensurate benefits; but, where the taxation is so excessive as to render it doubtful whether the , property to be benefited will suffice to pay the assessment against it, they can no longer be deemed taxation. To enforce their collection would be the exercise of absolute and arbitrary power over the property of the citizen, — a power which, under our form of government, does not exist even in the largest majority. Whenever such a case may arise, the courts will be prompt to afford protection.”

•The courts have gone very far in stating the effect of the presumption of the legislative determination of benefits resulting from .such improvements, and have' perhaps in some eases overstated it as conclusive. Such statements, however, that the legislative determination of benefit is conclusive, are always to be understood as made subject to the constitutional- limitation recognized in the. provision of the old charter of t-he city of Louisville, which is re-enacted in section 2834, Ky. St., and announced in Baptist Church v. McAtee, supra; Preston v. Roberts, 12 Bush, 570; Preston v. Rudd, supra; Frantz v. Jacob, 88 Ky., 525, (11 R., 55) 11 S. W., 654; Gleason v. Barnett, supra; and Walston v. Nevin, 128 U. S., 578, 9 Sup. Ct., 192, 32, L. Ed. 544, —in which is stated the position of the court as to the constitutional limitation. From that position we have never receded or been disposed to recede. See, also, Petter v. Allen (21 R., 1122), (54 S. W., 174); City of Louisville v. Selvage (106 Ky., 730 (21 R., 349) (51 S. W., 447).

Fourteenth Amendment.

Upon the authority of the opinion of Mr. Justice Harlan (Village of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct., 187, 43 L. Ed. 443), an immense volume of’ argument has been devoted to the proposition that the Kentucky statute is violative of the fourteenth amendment to the Constitution of the United States, in that there is no provision made iby the statute for a preliminary hearing as to the extent of special benefits to each piece of property resulting from the improvement. An extended consideration of this argument has been rendered unnecessary by recent decisions of the supreme court of the United States in the cases of French v. Paving Co., 181 U. S., 324, 21 Sup. Ct., 625, 45 L. Ed.—; Wormley v. District of Columbia, 181 U. S., 402, 21 Sup. Ct., 609, 45 L. Ed.—; Allen v. Same, Id.; Wight v. Davidson, 181 U. S., 371, 21 Sup. Ct., 616, 45 L. Ed.—; Town of Tonawanda v. Lyon, 181 U. S., 389, 21 Sup. Ct., 609, 45 L. Ed.— ,—all rendered on the 29th day of April last, and to appear in 181 U. S. The contention in each of these cases seems to be that there must be some provision for a preliminary hearing as to special benefits to meet the requirements-of due process of la,w. In each of those cases it was decided that such provision was unnecessary, and the doctrine laid down in Walston v. Nevin, 128, U. S. 581, 9 Sup. Ct., 193, 32 L. Ed., 546, was expressly reaffirmed. In that case the old charter of the city of Louisville was under consideration, of which the present act for the government of cities of the first class is, as to the matter under consideration, a re-enactment.' In the opinion by Chief Justice Fuller it was said: “The statute has been repeatedly before the Kentucky Court of Appeals, which has sustained it as constitutional and proper legislation; the power vested thereby in the local government ■being subjected to the supervision of the courts, ‘where the peculiar facts in each case can be examined, and the controversy determined by those rules and principles which have always governed courts in dealing with questions of assessment and taxation.’ Preston v. Roberts, 12 Bush, 570, 587; Beck v. Obst, 12 Bush, 268; Baptist Church v. McAtee, 8 Bush, 508, 516, 8 Am. Rep. 480. Unjust, unequal, ' or arbitrary burdens are not authorized to be imposed by the terms of the act, and opportunity is given to every party interested to be heard in opposition to the enforcement of the liability in the courts, which are specifically authorized to ‘make all corrections, rules, and orders to do justice to all parties concerned.’ ” The doctrine was reaffirmed by the supreme court in French v. Paving Co., citing Spencer v. Merchant, 125 U. S., 356, 8 Sup. Ct. 921, 31 L. Ed. 763; Hagar v. Reclamation Dist., 111 U. S., 701, 4 Sup. Ct., 663, 28 L. Ed., 569; Davidson v. City of New Orleans, 96 U. S., 97, 24 L. Ed., 616; Mattingly v. District of Columbia, 97 U. S., 687, 24 L. Ed., 1098; Bauman v. Ross, 167 U. S., 548, 17 Sup. Ct., 966, 42 L. Ed., 270; Parsons v. District of Columbia, 170 U. S. 45, 18 Sup. Ct. 521, 42 L. Ed., 943; Cooley, Tax’n. 447; 2 Dill. Mun. Corp. sec. 752; and many other authorities. In the' case of Wight v. Davidson if was said: “That it was not intended by this decision (Village of Norwood v. Baker) to overrule Bauman v. Ross and Parsons v. District of Columbia is seen in thé opinion where both of these oases are citfed ■and declared not to be inconsistent with the conclusion reached.” And in Town of Tonawanda v. Lyon it was said-in the opinion.by Mr. Justice Shiras: “It was not the intention of the court in that case to hold that the general 'and special taxing systems of the States, however long existing and sustained as valid by their courts, have been subverted by the fourteenth amendment of the Constitution of the United States. The purpose of that amendment is to extend to the citizens and residents of the States the same protection against arbitrary State legislation affecting life, liberty, and property as is afforded by the fifth amendment against similar legislation by'' Congress. The case of Village of Norwood v. Baker presented, as the judge in the court in the present case well said, “considerations of. peculiar and extraordinary hardships, amounting, in the opinion of a majority of the judges of this court, to actual confiscation of private property to public use, and bringing the case fairly within the reach of the fourteenth amendment.”

Constitutional Provision for Compensation for Injury.

Section 242 of the Constitution provides: “Municipal ■and other corporations, and individuals invested with the privilege of taking private property for public uses, shall make just compensation for property taken, injured or destroyed by them; which compensation shall be paid before such taking, or paid or secured, at the election of such corporation or individual, before such injury or destruction.” This section is relied on as a defense to the assessment, or, if that can not be done, ,as authorizing a recovery over against the city for the amount of the cost of the excavation made necessary by the change of grade of the street. It may be assumed that by a case of City .of Henderson v. McClain, 102 Ky., 402, (19 R. 1450) 43 S. W., 700, 39 L. R. A., 349), it has been settled that a 'change of grade causing damages to abutting property is such an injury as is provided for by this section.

It is contended that no lien was created by the making of Oatalpa, street, that the whole proceeding was void, and that the city and the contractors were mere1 trespassers, while doing the entire work. It may be conceded that, if the injunction had been applied for in proper time, the injury to the abutting lots might have been-prevented until compensation had been made- or secured' for such injury. The fact that several of the appellants obtained damages against the city on account of the change of grade, several of which judgments have been affirmed by this court,, would seem to show that there is no reasonable doubt of the fact of the injury. The question, however, is whether the remedy here sought is available. The fixing of the present grade was accomplished before the1 ordinance was adopted providing for this improvement. The injury caused by the change of grade and the consequent excavation was undoubtedly recoverable against the city, but that is not the relief which is sought in this case. What is here sought is: First, that the ordinance providing for the work be declared absolutely void, because it was done upon the grade theretofore fixed by the1 council, and it is therefore claimed that there can be no recovery by the contractor, who performed the work in spite of the vehement protest of the property holders; and, second, that the cost of the excavation be apportioned among the property holders, and that each of them recover the amount apportioned to him against the city. We do not think • that either of these contentions can be sustained. It may well be that the change of grade by the council might have been prevented by the injunctive process of a court of equity, or that the physical change by the excavation to conform to the grade fixed might in like manner have been prevented until compensation for the injury occasioned thereby had been provided. But we do not think it can properly be held that an ordinance providing for a public improvement is absolutely void, so as to leave the contractor who does the work without remedy, because' the law under which the ordinance is enacted requires1 the work to be done in conformity with the grade theretofore established .and the performance of the work in the manner required produces injury, compensation for which is not provided in the ordinance. Nor do we think appellants are entitled to recover of the city the cost of the excavation assessed against their property, and occasioned by the change of grade, as they have waited, not without earnest protest, however, until the work had been done; and it is obvious that the cost of excavation according tfo) the contract is not the measure of their damages. The damages which they have suffered have accrued, are easily ascertainable, and the proper proceeding for their recovery now is an action at law for damages.

The authorities cited do not seem to us to sustain the proposition argued by counsel for appellants, viz. that a statute, whether of the State or municipality, which results in injury to property, is unconstitutional unless the statute itself provides for compensation to be made for the injury before it i$ done. The case of the City of Covington v. Worthington, 88 Ky., 206 (11 R., 141), 10 S. W., 790, 11 S. W., 1038, is cited as holding that such a statute failing to provide compensation is void. On the contrary, in that ' case the statute under consideration wras held constitutional. The proposition there stated, that possession can not be taken of condemned property until compensation is made, is elementary. So, too, a statute which provided for taking property for public use without compensation would undoubtedly be unconstitutional. There is no trouble about that proposition. So, too, it might be that a statute which provided for injury of private.property for pub-Hp use, or which provided for the doing of anything from which injury necessarily would result, would be held unconstitutional if it did not provide compensation for the injury. But the vast majority of statutes providing means whereby local improvements shall be made, whether, as in this case, they are' general provisions contained in the charters of municipalities, or provide directly for the specific improvement, the courts can not say that the statute will work injury in all or any of its applications; nor can such statement be predicated of an ordinance' which merely determines that an improvement shall be made. In such cases the injury, prospective or existing-, must be affirmatively shown by the party aggrieved. In this connection, see Hickman v. City of Kansas, 120 Mo., 110, 25 S. W., 225, 23 L. R. A., 658.

Constitutionality of Section 2839, Ky. St.

“The board of public works shall make out all apportionment warrants for which liens are given for improvements of public ways. . . .” It is urged that this is a legislative function, amounts to the imposition of a tax, and can not be performed by a body wffiich in the act creating it is designated as an “executive board.” The authorities cited by appellants upon this question do not seem to us to be at all applicable. The action provided for in the section is making out apportionment warrants. In cases where, as in the cases at bar, the improvement is in a territory bounded by principal streets, the statute itself makes the apportionment in proportion to the number of square feet of land in each fourth of a squáre cóntiguous to the public way improved. When the ordinance is duly passed, the contract executed, and the work done, the cost of the work is by thestatute apportionedamong-the lots in the quarter squares contiguous- to the improvement. The mere making out of the apportionment warrants is. purely clerical and ministerial, and ipay be properly performed by the executive board. If incorrectly performed, the errors therein may be corrected by the court. See Gosnell v. City of Louisville (104 Ky., 201) (46 S. W., 722). It is provided that interest shall not go until the warrants1 are issued by the board. This provision, we assume, is'for the benefit of the property holder, that he may have notice! of the exact amount to which his property is subject; and for this reason we held in Fehler v. Gosnell, supra, that, where the apportionment 'by the board is incorrect, interest does not begin to run until a correct apportionment is made by the court.- This action of the board-is in no sense the levy of the tax for the local improvement. The. tax is levied by the statute when -the ordinance is adapted, providing “said work shall be done at the cost of the owners of the ground"as provided by law.” The law itself directs the proportion in which the levy is made. See Richardson v. Mehler, this day decided. In most of the authorities cited by counsel that apportionment considered is that defined by Cooley, Tax’n, p. 175, where it is said: “The apportionment of the tax consists in a selection of the subjects to be taxed, and in laying down the rule by which to measure the contribution which each of these subjects shall make to the tax. Apportionment is therefore a matter of legislation.” It is evident that ordinary taxation is here referred to, and not special assessments for local' improvements. The apportionment referred to in the quotation is that which we find in the revenue laws of the States where the various subjects of taxation are classified, and the rate of taxation upon each class fixed. Such definitions can have no application to a case like this, where all of this ■apportionment has been performed by the Legislature, land where property to be taxed belongs -entirely to one class, viz., the 'Square feet of land in the quarter squares contiguous to the improvepient. -Such apportionment as is here provided for is purely clerical, and is so recognized in the cases of Baptist Church v. McAtee, 8 Bush, 516, 8 Am. Rep., 480, and Loeser v. Redd, 14 Bush., 20.

The Constitutionality of the Act for the- Government of Cities of the First Class.

It is claimed-, also, that all that portion of the act for the government of cities of the first class which provides for the original construction of public ways at the cost •of abutting owners is unconstitutional, because there is no-requirement in the statute for an approval by the city council of the contract for such construction; that in fact there is no provision of law requiring any contract to be approved by the council, except the provision in section 2822, Kentucky Statutes, which evidently refers to disbursements by the city out of its own funds; that the only power to let a street contract is contained in section 2829, and is by that section vested in the .board of public works; and that this power is an essential part of >the tax, and is that part of the procedure looking towards the imposition of the tax by which the tax rate is fixed. It is urged that the only proceeding which is required, to' be taken by the council in these, matters is the enactment of the ordinance by which it is simply determined that the improvement shall be made; that the subsequent procedure, so far as the statute is concerned, is intrusted solely to the board of public works; that the board draws the- specifications, advertises the letting, opens the bids, awards the contract, executes" the contract under the seal of the corporation, inspects and receives the work when finished,' and apportions the cost among the property holders. The passage of the ordinance, says counsel, is but one step in the imposition of the tax; it determines that the improvement shall be made, and the law provides that it shall be done at the cost of abutting property holders, but that until the bidding is completed, and the rate thereby fixed, by fixing the •amount to be raised, the imposition of the tax is not complete. And this is urged upon the ground that the fixing of the amount to be raised by taxation is a legislative function, and can not be performed by a purely ministerial body, such as the executive board. To this it may be re■sponded that the question is not an open one- in this State. In Baptist Church v. McAtee, supra, Judge Lindsay, ■speaking for the court, in response to a similar contention, said: “The general council is invested with legislative discretion in determining when and in what manner a particular street shall be improved, but in apportioning the cost of the improvement among those persons bound to pay the cost, as well as in accepting the contract under which it is to be made, its .action is ministerial, and made subject to judicial revision 'when tainted with fraud, or when it is necessary for the correction of errors. The council procures the improvement to be made, and the legislative enactment to which the municipality owes its existence, unaided by any municipal ordinance, imposes upon the property owners the duty of paying their proper proportions of the expense thereby incurred.” So, in Loeser v. Redd, 14 Bush, 20, in an opinion by Judge Pryor, it was said: “The city council orders ¡the improvement, and the law .provides the mode of assessment and the property to be assessed. In such cases, when a mistake has been made in the assessment, and a party owning property within the fourth of a square has paid too much, or been omitted from the assessment, or the council has gibne beyond the fourth of a square in making- the assessment, the courts have the right to correct the mistake or rectify the error, for the reason that the law, when the improvement is ordered, creates and fixes the liability. No discretion is left with the court or council as to t'he party to be charged, or as to the property to be taxed. The chancellor is only • enforcing the law by requiring the property already selected as the subject for taxation in the particular case to pay it.” So, in an opinon'by Judge Paynter in Gleason v. Barnett (106 Ky., 125) 20 R., 1694, 50 S. W., 68, it is said: “It is witliin the power of the general council, by ordinance, to declare where the improvement shall be made, add how it shall be made, but the General Assembly has declared how the cost shall be apportioned when the territory is defined into squares by principal streets, and that it shall be done by the bqard of public works.v Th'ese authorities seem to us to apply, also, to the contention last considered.

It may be remarked that the contract appears to have been approved by both boards of the council and signed by the mayor, but we attach no importance to this fact. If a compliance with the’ requirements of the statute, express and implied, does not create the1 lien, it can not be created by unauthorized action of the council.

Warrants nob Approved, by the Council.

It appears that by general ordinance of the city approved June 26, 1891 (Ordinances of Louisville of November, 1895,. p. 10), provision was made that the assessor should furnish the board a list of the names of owners of property, and a description of the ground owned by each, and that when said list and description should be furnished, and the work received as completed, and apportioned by the board of public works, and approved by the general council and the mayor, the city should furnish warrants for the cost of the improvements against the owners of ground, and that the lien for the cost of the improvement should exist from the date of the approval of the apportionment by the mayor. It is insisted that, as the warrants here sued on were not approved by the general council or the mayor, no valid apportionment was made, and no lien ever 'attached. This contention can not be sustained. It may be conceded that the city legislature had power to require of its officials that they should do these things, but that the (requirement does not in the slightest degree affect the question whether the contractor acquired a lien under the statute. If the statute is constitutional and was complied with, the rights which it provided should attach upon such compliance became fixed thereby.

Annexation.

Upon the question of whether the portion of Parkland in which this improvement is situated was annexed to the city of Louisville, we think the record is conclusive, and can not be overcome by the recollection of a witness. Indeed, the witness’ statement that the ordinance was passed by both boards on the same night may be perfectly consistent with the proper passage of the ordinance by one of the boards at a subsequent date, which in Oswald v. Gosnell (21 R., 1660) (56 S. W., 165), was held a sufficient compliance with section 2777, Kentucky Statutes.

Five-Years Guaranty.

We can not concur in the contention for appellants that the five-years guaranty provided for in the general ordinance which was referred to and made a part of the ordinance for the construction or the improvements, and also embodied in the contracts, avails to defeat a recovery. The guaranty clause of the contract has been construed by this court in Fehler v. Gosnell and Gosnell v. City of Louisville, supra. The contractor must be presumed to have contracted with reference to the legal construction of this provision as determined by the court. The judgment of the trial court conforms to the rulings of this court in the cases mentioned, and relieves the taxpayers of ten per cent, of the cost of the improvement. And this, we are bound to presume, was a sufficient relief against any excessive cost occasioned by the insertion oí-the provision. Moreover, the evidence in the case tends strongly to support the conclusion that it was in fact ample for that purpose.

The Grade.

We do not fully und¿rstand the contention of counsel as to the fixing of the grade, in support of which he refers us to Zable v. Orphans’ Home, 92 Ky., 94, 13 R., 385, 17 S. W., 212, 13 L. R. A., 668. In that case it was held that there-was no averment or evidence of the grade having been fixed. But it was, in addition, held that proper averments of the steps leading to the creation of a lien, supported by the exhibits required by the then existing statute to make out a prkna fado case, entitled the plaintiff to a judgment in the face of a mere denial. The requirements stated in that opinion seem to have been met in this case. McHenry v. Selvage, 99 Ky., 232, 18 R., 473, 35 S. W., 645.

Was the Improvement Necessary?

Whether the improvement of Catalpa street was necessary is, we think, a matter committed solely to the determination of the council, subject to the limitations we-have indicated. This doctrine seems1 to be 'abundantly supported1 by the cases of Preston v. Roberts, 12 Bush, 590, and Caperton v. Humpich, 95 Ky., 109 (15 R., 430) 23 S. W., 875.

Claim against City for Compensation for Release of First Contractor.

It appears that at the first letting this work was awarded to one McNaghton, who entered into a contract with good security; that after performing certain work in the same neighborhood, under like contracts, he became insolvent (it is claimed, by reason -of the improper rejection of materials purchased by him to carry on the work), and made application for .release from his remaining contracts, and that, although his surety was ample and sufficient, the board of public works recommended his release, and the council adopted a resolution rescinding the contract. There was a subsequent advertisement of the improvement, and the appellee, Gleason, was the lowest bidder. His bid was from 25 to S3 per cent, higher than the McNaghton contract. No award was made at that time, but at a subsequent letting the contract was awarded to Gleason on substantially the same bid that he had made at the time of the second advertisement. A judgment over against the city is asked by the appellants for the difference between the McNaghton contract and the bid upon which the contract was awarded to Gleason. Does this state of facts constitute a cause of action against the city? Upon this question the members of the court are not in accord, but the majority are of opinion that it does so, for the following reasons: The city of Louisville, in determining that Gatalpa street should be improved, performed a legislative function. In advertising for bids under the ordinance making the award, executing the contract with the bidder, and requiring the performance of the work, it was, through its officers, executing a statutory power of attorney from the property holders. The contract was made with concededly good and sufficient authority. The council, on the recommendation of the board of public works, undertook by resolution to release the contractor and his surety from its fulfillment. There was here no exercise or attempt to exercise legislative discretion a second time upon the question which had previously, in the exercise of legislative discretion, been determined, viz., whether the improvement was necessary and should be made. The extent of the council’s powers in that behalf, and the proper mode of their exercise, need not be considered here. Nor need we consider the powers of the council in a case where the contract is unenforceable either because of irregularity, or because of Insolvency of the contractor and his surety. The contract here is conceded to have been valid and enforceable. It was one which the city council* had no power by resolution to cancel, and subsequent events showed it was a highly advantageous contract. By the city’s unauthorized action it cast upon the property holders the burden of the difference in cost between the work as provided for under the McNaghton contract and under the less advantageous Gleason contract. For this difference the property holders are entitled to a right of action, not against Gleason, who was required only to look to the validity of the ordinance which provided for the improvement, but against the city, by whose unauthorized action the burden was cast upon them.

But it is contended on behalf of the city that, if a right of action exists against it for the excess of cost of the Gleason contract over that of ■ McNaghton, the proportion of that excess to which each of the appellants is ■entitled would not be as much as $200; that the right of recovery, if it exists, is to a personal judgment against the city in favor of each individual for his proportion of the excess, and not the aggregate to which all of the appellants, would be entitled; and from this it is insisted that it follows that this court has no jurisdiction of the appeals against 'the city, under Oswald v. Morris, 92 Ky. 48, 13 R., 355, 17 S. W., 167. But the majority of the court are of the opinion that, as the right of recovery grows out of the ordinance and contract, whereby a lien has been imposed upon appellant’s lands, and as the court has jurisdiction of the appeal from the judgment enforcing that Ken, which, under the statute, is enforceable in a single suit against the lands of all, it should retain jurisdiction of -the appeals in so far as- it may be necessary to do justice between the parties. This seems to be sustained by Rickets v. Hamilton (16 R., 351-762) (29 S. W., 736). Moreover the total claim against the city of each appellant seems probably to be sufficient to give jurisdiction.

From this it follows that the judgments in favor of Gleason and Bitzer are affirmed, and the judgments- in favor of the city are reversed, with instructions to enter judgments in conformity with this opinion.

Judge Guffy dissents.