The opinion of the court was delivered by
Yalentine, J.:
That the City of Leavenworth had ample power to grade streets and assess the cost of grading the same to the lots adjacent thereto, and require [295] that the contractor should loolc exclusively to such assessment for compensation, will not be denied by the plaintiffs below, nor by Dugan’s administrators. But they contend that there were many irregularities, which released the lots and the lot owners from liability and made the city itself liable for the grading.
These supposed irregularities are as follows: Rogers’ bond was not double the amount of the contract price of the grading; no plats, plans or specifications, of the grading were ever made out; the city council never prescribed how the grading should be done; no grade was ever established; the contract with Rogers was assigned to Dugan, which they claim could- not be done; Dugan did not give bond; the certificates of grading were given to Dugan, when they should have been given to Rogers; the work was not done within the time prescribed by the contract. And they further claim that the city council could not, by a resolution, extend the time for doing the work, and could not, either by resolution or ordinance, ratify what had already been done, so as to cure any of the said irregularities.
On the other hand the city claims : First, There were no irregularities; and, Second, That if there were, the contractor knew of them as well as the city, and that, therefore, in no event is the city liable.
i. statute-cod-effect. All the transactions which form the subject of this litigation, were had under chapter 69, laws of 1864, §§ 3 to 12. Said sections gave to cities and city counoils the most ample and complete powers in grading and improving streets, alleys, etc. While the legislature clothed the city council with full powrer in the premises, yet they, did not attempt to define just how said power should be exercised. They left the city coun[296] cil to exercise a great deal of discretion in the nse of such power. We do not think it can reasonably be contended that the city or any of its officers went beyond the scope of the authority given to them by the legislature, or that they infringed or violated any law of this State or of the United States, from the time the contract was made up to the time of levying the special tax. The contract was regularly made; the bond was regularly approved; the contract was assigned according to the terms of the contract itself; the grading was done under the supervision of the city engineer, as provided by the contract, and was approved by the city, and the special tax to pay for the grading was regularly levied by the city council.
It is contended, however, that the provisions of a certain city ordinance (No. 90, passed June 14, 1863, under the laws of 1862,) were violated. We have already decided in other cases, (City of Leavenworth v. Laing, et al., ante p. 274, and Paine v. Spratley, 5 Kas., 525,) that portions of that ordinance never had any force or effect; * and we now decide that other portions of the same were repealed and greatly modified by the said laws of 1864. After the passage of the laws of 1864, the city council was at liberty to obey that ordinance (where the ordinance did not itself violate the law) or not, just as they chose.
powers of. The principal objection urged against the validity of the said special tax is: “ That the contract had expired by its own limitation before any of the work was done, and could not, therefore, [297] be revived by any resolution of the city council.” The city also urges this as an objection to any recovery against itself. It will be perceived, by reading the contract, that the. city was not bound, by the'terms of the contract, to consider time as of the essence of the contract. Probably the city might have done so if it had so chosen; but it did not so choose. It extended the time for the grading to be done by a resolution of the city council.
But it is claimed that the time could not be extended by a resolution, but, if extended at all, that it must be done by an ordinance. The statute, however, nowhere requires that such a thing should be done by an ordinance; nor does it even require that the grading of the streets should be ordered by an ordinance. In the absence of such statutory requirement we suppose that the city council might extend the time as well by a resolution as by an ordinance. 3 Butcher, N. J., 493, 498; 17 N. Y., 449; 29 N. Y., 215, 217; 39 Barb., 266, 269. But after this work was all done and completed, it was ratified by an ordinance levying said special tax.
Up to and including the levying of said special tax we think the proceedings were sufficiently regular to be valid' under the law, and binding upon all parties. But the city stopped at that point. The city provided no means of collecting said speeiál tax. The city did not sue the lot owners, nor provide for selling their lots under section six of said chapter 69, Laws of 1864.
[298] 3. City' is primaioyrspebifni°i£ly piovementB. [297] Under such circumstances, what are the rights of all the parties ? The city treasurer had no authority to sell said lots, nor to advertise them for sale : City of Leavenworth v. Laing, and Paine v. Spratley, supra. The contractor and his representatives had no authority to sell [298] said lots, nor to enforce the payment for the contractor’s. services, in any other manner, from the lot owners. The lot owners are never directly or primarily liable to the contractor for grading done by him. They o J are liable to the city only, and the city is primarj.]y †0 the contractor. (Argentius v. City of San Francisco, 16 Cal., 255, 258, 268, 281.) Wheri the city fails to provide any means for collecting the value of the grading from the lot owners and paying the same to the contractor, it leaves the contractor without any possible means of ever obtaining compensation for his services, except by suing the city. The city is liable to him; and the only way by which the city can relieve itself from such liability is by levying a legal tax, (§ 11, Laws of 1864, p. 129;) and to levy a legal tax, does not in such a case mean to simply make an assessment; it means to make the assessment, and also to provide some means for its collection. In this case the city did not take the necessary steps to relieve itself from liability to the contractor, and hence the judgment of the court below, against the city and in favor of the representatives of the contractor, for the value of the grading was correct.
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The opinion of the court was delivered by
Yalentine, J.:
That the City of Leavenworth had ample power to grade streets and assess the cost of grading the same to the lots adjacent thereto, and require [295] that the contractor should loolc exclusively to such assessment for compensation, will not be denied by the plaintiffs below, nor by Dugan’s administrators. But they contend that there were many irregularities, which released the lots and the lot owners from liability and made the city itself liable for the grading.
These supposed irregularities are as follows: Rogers’ bond was not double the amount of the contract price of the grading; no plats, plans or specifications, of the grading were ever made out; the city council never prescribed how the grading should be done; no grade was ever established; the contract with Rogers was assigned to Dugan, which they claim could- not be done; Dugan did not give bond; the certificates of grading were given to Dugan, when they should have been given to Rogers; the work was not done within the time prescribed by the contract. And they further claim that the city council could not, by a resolution, extend the time for doing the work, and could not, either by resolution or ordinance, ratify what had already been done, so as to cure any of the said irregularities.
On the other hand the city claims : First, There were no irregularities; and, Second, That if there were, the contractor knew of them as well as the city, and that, therefore, in no event is the city liable.
i. statute-cod-effect. All the transactions which form the subject of this litigation, were had under chapter 69, laws of 1864, §§ 3 to 12. Said sections gave to cities and city counoils the most ample and complete powers in grading and improving streets, alleys, etc. While the legislature clothed the city council with full powrer in the premises, yet they, did not attempt to define just how said power should be exercised. They left the city coun[296] cil to exercise a great deal of discretion in the nse of such power. We do not think it can reasonably be contended that the city or any of its officers went beyond the scope of the authority given to them by the legislature, or that they infringed or violated any law of this State or of the United States, from the time the contract was made up to the time of levying the special tax. The contract was regularly made; the bond was regularly approved; the contract was assigned according to the terms of the contract itself; the grading was done under the supervision of the city engineer, as provided by the contract, and was approved by the city, and the special tax to pay for the grading was regularly levied by the city council.
It is contended, however, that the provisions of a certain city ordinance (No. 90, passed June 14, 1863, under the laws of 1862,) were violated. We have already decided in other cases, (City of Leavenworth v. Laing, et al., ante p. 274, and Paine v. Spratley, 5 Kas., 525,) that portions of that ordinance never had any force or effect; * and we now decide that other portions of the same were repealed and greatly modified by the said laws of 1864. After the passage of the laws of 1864, the city council was at liberty to obey that ordinance (where the ordinance did not itself violate the law) or not, just as they chose.
powers of. The principal objection urged against the validity of the said special tax is: “ That the contract had expired by its own limitation before any of the work was done, and could not, therefore, [297] be revived by any resolution of the city council.” The city also urges this as an objection to any recovery against itself. It will be perceived, by reading the contract, that the. city was not bound, by the'terms of the contract, to consider time as of the essence of the contract. Probably the city might have done so if it had so chosen; but it did not so choose. It extended the time for the grading to be done by a resolution of the city council.
But it is claimed that the time could not be extended by a resolution, but, if extended at all, that it must be done by an ordinance. The statute, however, nowhere requires that such a thing should be done by an ordinance; nor does it even require that the grading of the streets should be ordered by an ordinance. In the absence of such statutory requirement we suppose that the city council might extend the time as well by a resolution as by an ordinance. 3 Butcher, N. J., 493, 498; 17 N. Y., 449; 29 N. Y., 215, 217; 39 Barb., 266, 269. But after this work was all done and completed, it was ratified by an ordinance levying said special tax.
Up to and including the levying of said special tax we think the proceedings were sufficiently regular to be valid' under the law, and binding upon all parties. But the city stopped at that point. The city provided no means of collecting said speeiál tax. The city did not sue the lot owners, nor provide for selling their lots under section six of said chapter 69, Laws of 1864.
[298] 3. City' is primaioyrspebifni°i£ly piovementB. [297] Under such circumstances, what are the rights of all the parties ? The city treasurer had no authority to sell said lots, nor to advertise them for sale : City of Leavenworth v. Laing, and Paine v. Spratley, supra. The contractor and his representatives had no authority to sell [298] said lots, nor to enforce the payment for the contractor’s. services, in any other manner, from the lot owners. The lot owners are never directly or primarily liable to the contractor for grading done by him. They o J are liable to the city only, and the city is primarj.]y †0 the contractor. (Argentius v. City of San Francisco, 16 Cal., 255, 258, 268, 281.) Wheri the city fails to provide any means for collecting the value of the grading from the lot owners and paying the same to the contractor, it leaves the contractor without any possible means of ever obtaining compensation for his services, except by suing the city. The city is liable to him; and the only way by which the city can relieve itself from such liability is by levying a legal tax, (§ 11, Laws of 1864, p. 129;) and to levy a legal tax, does not in such a case mean to simply make an assessment; it means to make the assessment, and also to provide some means for its collection. In this case the city did not take the necessary steps to relieve itself from liability to the contractor, and hence the judgment of the court below, against the city and in favor of the representatives of the contractor, for the value of the grading was correct.
While it follows from what we have already said, that the city treasurer is liable to be restrained by order of injunction from selling the plaintiffs’ lots, it by no means follows that the city itself is so liable. The city is not so liable, because, first, the city had full and ample power to provide for the sale of said lots; second, the city never attempted to exercise that power. Hence, it was error for the court below to allow the injunction, as it did, against the city. Without deciding in this, case, whether the city still has power to collect this spe[299] cial tax from the lot owners, by selling their lots, or by suit, we may say that it would seem that it has such power: Mayor, etc., v. Colgate, 12 N. Y., 140; McLunnery v. Reed, 23 Iowa, 410, 417.
l pkíotkw. ex-ceptione, hov7 made. There is one question raised by the counsel for the defendants, which we hardly think is presented by the record. Said counsel claims that the city did not except to the conclusions of law as stated in the findings of the court. It is true that the city did not except . . . . . , m form or in terms, but it did except m substance. The court found only two conclusions of law, and the second is only a corollary from the first. Immediately after the court announced its findings, the city moved for a new trial, among other grounds, for the reasons, “that said findings are contrary to law; that the findings of laxo are against the laxo of the land, and against the evidence in the case.” The court overruled said motion. The city excepted, and the court then entered judgment against the city, and the city again excepted. After an examination of such a record it would be exceedingly technical to say that the city had not saved said questions of law, so as to present them properly to this court.
After a careful examination of all the questions involved in this case, we are of the opinion that the judgment of the court below in favor of the administrator of the estate of John Dugan, deceased, and against the city, for the value of the grading should be affirmed. That the judgment in favor of the plaintiffs below, and against the city, forever restraining the city from selling said lots, should be reversed. That the judgment in favor of the plaintiffs below, and against the city treasurer, (which is virtually against the city) forever restraining him from selling said lots, should be so modified that the city treas[300] urer shall be forever restrained from selling said lots, unless the city shall first make a legal provision for their sale.
The judgment in favor of the plaintiffs below, and against Dugan’s administrator, forever restraining him from selling said lots, cannot of course be disturbed in this court, as said administrator is not here complaining, and the judgment against him does not affect the rights of the other parties.
This case is remanded for further proceedings in the court below, in accordance with this opinion.
All the justices concurring.