Richardson v. Mehler lot owners. We are of opinion that this objection also comes too late. It does not appear that the ordinance was ever enforced, or that any one was prevented from bidding by the ordinance in this case. Fehler v. Gosnell (Ky.) 35 S. W. 1125. For the reasons given, the judgment is affirmed. GUFFY, J. I dissent from the opinion rendered in this case for several reasons, among which I mention the following: My opinion is that the ordinance which, it is alleged, authorized the improvements for which the property of the appellants was adjudged to be sold, was utterly void. This being true, there can be no valid contract made or entered into for such improvements, and no lien could be created upon the property of the appellants for the improvements in question. The act of the legislature which attempts to authorize such improvements as those in question to be made at the cost of the property owners is in violation of section 171 of the constitution of this state. It is too clear for argument that the burden imposed by the law in question is a tax. It is manifestly for the benefit of the public, and hence it must be true that it should be levied upon all the property within the territorial limits of the city authority levying the same. The act in question is also in violation of section 13 of the constitution and section 242. Section 13 provides that no man's property shall be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him. Section 242 provides that municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation, etc. It is perfectly manifest that the street improvements in question are made for the benefit of the public use, and the public has the same right to enjoy and use the same that the property owner has, and it therefore follows that requiring the property owner to pay the expense of the improvements in question is in violation of the several sections of the constitution supra. The statute is also in violation of the federal constitution, which provides that no person shall be deprived of his property without due process of law. Section 2838, Ky. St., is also in conflict with subsection 22 of section 59 of the constitution. The said subsection forbids the legislature by special act to authorize the creation, extension, and enforcement, impairment, or release of liens. It will be seen from the statute in question that it provides for the creation of liens in the city of Louisville in regard to street improvements, and provides what shall be evidence of the acts necessary to create such liens, while no such provisions are made in respect to the creation of other liens in any other part of the state, nor as to other liens in the city. The statute is also in conflict with subsection I of section 59. which prohibits the legislature from regulating the practice or jurisdiction of courts of justice, and the statute in question provides a rule of evidence in respect to street Barfield v. Gleason improvements that is not made applicable to any other controversy. In my opinion, the object of the present constitution was to give complete and equal protection to all the citizens of the commonwealth, and any law which requires the citizen of any town or district to pay for public improvements is in violation of the constitution, and contrary to natural justice; that it is substantially taking private property for public use without any compensation. If the streets and sidewalks are necessary for the public, the whole public should pay for the same. If they are not for public purposes. there is no excuse at all for making the same. Many other reasons might be given showing the illegality and injustice of the so-called statutes under which these oppressive burdens are enforced; but, inasmuch as the same would not affect the majority opinion in this case, I deem it unnecessary to specify the same. I most earnestly and respectfully dissent from the opinion rendered in this case. It is a well-settled rule of law that a party seeking the enforcement of a statutory right or remedy must pursue the statute strictly, or at least substantially. It seems to me that the statute itself has been almost totally disregarded in this case. It seems clear to me that the judgment appealed from should be reversed, with directions to the court below to dismiss the petition. BARFIELD et al. v. GLEASON et al. KIMBERGER et al. v. BITZER et al. (Court of Appeals of Kentucky, June 22, 1901.) Streets-Construction-What Constitutes. The mere grading of a dirt road so as to form a crown, and to leave depressions at the sides for surface drainage, and the leveling of inequalities, does not constitute a street construction. Same Same-Assessments-Constitutionality.-Ky. St. § 2838, providing for the original construction of streets in cities of the first class at the exclusive cost of the owners of abutting property according to area, is not unconstitutional. Same Same Same Same-Benefits and Costs.*-A street assessment will not be held to be an arbitrary and unconstitutional taking of property merely because the benefits from the street are not commensurate with the cost, as the legislature has a large discretion in defining the property deemed to be specially benefited, and the courts will not interfere, except upon a showing of fact so conclusive as amply to justify their interference. Same Same-Same-Same-Same-Preliminary Hearing.-The fact that a state statute providing for the original construction of streets at the exclusive cost of the owners of abutting property according to area makes no provision for a preliminary hearing as to the extent of special benefits to each piece of property resulting from the improvement does not render it violative of the fourteenth amendment to the constitution of the United States. *See Lorden v. Coffey, 6 Mun. Corp. Cas. 113, and note. Barfield v. Gleason Compensation for Injuries to Property.-Under Const. § 242, providing that "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," an ordinance for a street improvement is not void because it fails to provide for compensation for the injury to abutting property from the excavations necessary to be made to conform the street to the grade theretofore fixed by the city council, as a statute or ordinance which results in injury to property is not unconstitutional because it fails to provide for compensation to be made for the injury before it is done. Unnecessary Change of Grade-Remedies.-Though the change in the grade was unnecessary, and might have been prevented by injunction, and though the excavations necessary to conform to the grade might have been prevented until compensation had been provided for the injury to be occasioned thereby, yet, as neither of these things was done, the defendants in an action by the contractor to enforce his lien cannot have the cost of the excavation, which has been included in the assessment, apportioned among them, and recover against the city the amounts apportioned, the remedy being an action at law to recover the damages which have actually accrued from the change of grade. Apportionment Warrant-Not a Tax.-The making out of an apportionment warrant is not the levy of a tax, and may be performed by an executive board. Streets-Construction — Assessment-Constitutionality.-A statute . providing for the construction of streets at the cost of abutting property owners is not unconstitutional because it does not require the contract for such construction to be approved by the city council, as that is a ministerial act, and may be entrusted to an executive board. Apportionment Warrants-Irregularity-Lien-Validity.-All the requirements of the statute necessary to create a lien having been complied with, the fact that the apportionment warrants were not approved by the mayor and council, as required by an ordinance, does not affect the validity of the lien. Time of Passage of Ordinance-Records Conclusive. The records of the council showing that an ordinance was passed by the two boards on different days is conclusive of that question, and cannot be overcome by the recollection of a witness; and, besides, the statement of a witness that an ordinance was passed by both boards on the same night may be consistent with the proper passage of the ordinance by one of the boards at a subsequent date, which is a sufficient compliance with Ky. St. § 2777, providing that an ordinance shall not be passed by both boards on the same day. Repairs-Contract-Construction.-Where the contractor was required by the contract to keep the street in repair for five years, and, in order to secure that undertaking on his part, was required to deposit bonds amounting to 10 per cent. of the contract price, it will be presumed that this provision did not increase the cost of the improvement beyond the 10 per cent., as the court of appeals had previously construed such a provision in a street-improvement contract as binding the contractor only to that extent for repairs, and it must be presumed that plaintiff contracted with reference to that construction. Prima Facie Case-Judgment.-Proper averments of the steps leading to the creation of a lien, supported by the exhibits required to make out a prima facie case, entitle plaintiff to a judgment in the face of a mere denial as to the fixing of the grade of the street. Necessity of Improvement-Conclusiveness of Council's Determination. After the work is done, the legislative determination of the council that the improvement was necessary will not be disturbed, except upon a showing of abuse of discretion so conclusive as to amply justify the interference of the court. Release of Contractor-Property Holder's Remedy against City.Where the city, without good cause, released an accepted bidder, who Barfield v. Gleason had given bond with solvent surety, and the bid accepted upon a second advertisement, though the lowest one then made, was considerably higher than that of the released contractor, the property owners are entitled to judgments over against the city for the difference. Appellate Jurisdiction. As the lien of the contractor is enforceable in a single suit against all the landowners, and the court of appeals has jurisdiction of an appeal from the judgment enforcing that lien it will retain jurisdiction of the appeal for the purpose of giving the appellants relief against the city, so as to do justice between the parties though the claim of each appellant against the city may be less than $200. GUFFY, J., dissenting. Appeals from circuit court, Jefferson county, common pleas division. "To be officially reported.' Actions by J. R. Gleason and others against David R. Barfield and others, and by Peter Bitzer and others against V. Kimberger and others, to enforce liens for the cost of street improvements. Judgment for plaintiffs, and defendants appeal. Reversed. W. W. Thum, Phelps & Thum, and Stanley E. Sloss, for appellants Barfield and others. H. M. Lane, for appellee Gleason. F. W. Morancy, for appellee Bitzer. H. L. Stone, for appellee City of Louisville. DU RELLE, J. 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 Ky. St. § 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 affirmative averments 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 appor Barfield v. Gleason tionment warrants for which it might be determined that no lien existed in his favor. A number-but possibly not allof 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 25 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 city 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, 35 S. W. 1125, judgment was rendered enforcing the lien for 90 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, 63 S. W. 957, we shall not attempt more than a brief statement of 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 6 M C Cas-16 |