Where the council is vested with power to order and make the improvement, either upon petition or notice, and these formal requirements have been complied with, the power of the council is discretionary and quasi-judicial, and its decision is conclusive in the absence of mistake or fraud; and the courts will not interfere to prevent it because of alleged prodigality or inutility. And where the council is authorized, either expressly or by fair implication, to determine whether a majority of property-owners have requested the improvement, their action in ordering the improvement thereon is a conclusive determination of that question. 71. Conditions of contract for improvements.— A municipal contract for public improvements is subject to the following limitations and conditions: (1) The subject-matter of the contract must have been included within the ordinance or resolution ordering the improvement; (2) the contract must not surrender or abdicate any public function or duty; (3) it must be let and made in the prescribed method. At every step in the transaction there is a challenge of authority which the contractor must heed at his peril: (a) Has the legislature under the constitution power to grant authority to the municipality? (b) Has the legislature duly conferred such power upon the municipality? (c) Has the governing board of the municipality, in pursuance of such authority, ordained that the improvement shall be made? (d) Is the proposed contract within the scope of the ordinance? (e) Is the person assuming to represent the city in making the contract an authorized agent thereof? If an affirmative answer can be given to all these questions, the contractor may feel secure in proceeding under his municipal contract. To determine whether the contract is within the scope of the ordinance, particular attention should be directed to ascertaining whether the contract is (1) within the topographical limits prescribed in the ordinance; (2) within the monetary limits fixed therein; (3) of the nature of the improvement ordained by the council. But under a statute giving a corporation authority to construct sewers within the municipality and beyond it, the town may construct sewers within its territorial limits, and in that of adjoining municipalities to secure an outlet.27 No public corporation may in any way alienate or surrender the trust powers conferred upon it for the public welfare. Of this nature are police powers, eminent domain, control of streets, and the like. A contract, therefore, with a gas or water company, permitting it to use the streets of a city for the purpose of laying down its mains, cannot obstruct a city in the exercise of any of these public powers; and the company cannot enjoin a contractor from grading below the level of the pipes, and thus requiring them to be relaid below the new level of the street. will a contract right of a street railway to use the city streets prevent work under a contract to regrade the entire street, and thereby disturb the bed and track of the railway, even though the company had itself agreed to make the improvement. Nor A contract for a public improvement is one for per 27 Butler v. Montclair, 67 N. J. Law 426. sonal services and skill, and not assignable without the consent of the municipality, and therefore the assignee can maintain no action against the municipality for services rendered by him. A contract let under bidding is made and executed only when a bid has been accepted by the proper agency of the municipality in the manner required by statute. But the acceptance and use of the thing contracted for is a completion of the contract, and estops the corporation from objecting to merely formal matters; also, where the contract provides that matters of uncertainty or dispute arising under a contract in making the improvement shall be submitted to arbitration, no action can be maintained by either party without first offering to make such submission. 72. No damages for improvements.-No action lies at common law against a municipal corporation for damages resulting to the property of an individual from the prosecution, with reasonable care and skill, of duly authorized works of municipal improvement. In the leading case of O'Connor v. City of Pittsburgh,28 in which, by a reduction of seventeen feet in the street grade, a church which had been erected according to directions of the city regulator was rendered worthless and required to be torn down, the court said: "We had this case reargued in order to discover, if possible, some way to relieve the plaintiff consistently with law, but grieve to say we can find none. The law is settled not only in Penn 28 18 Pa. 187. * sylvania, but by every decision in the sister states, except one. The loss to the congregation is a total one, while the gain to holders of property in the neighborhood is immense. The legislature that incorporated the city never dreamed that it was laying the foundation of such injustice; but, as the charter stands, it is unavoidable." The authority which was given the city by its charter empowered it "to improve, repair, and keep in order the streets." It was ruled in that case that, since the work of improvement did not trespass upon the land of the plaintiff, no property of the plaintiff was taken within the meaning of the constitutional provision requiring just compensation in case of exercise of the power of eminent domain, and therefore plaintiff could not evoke the protection of the Constitution. Since the decision in that case many states have incorporated into their constitutions a provision that private property shall not be taken or damaged for public use without just compensation therefor; and most of the other states have obtained the same result by legislative enactment.29 The remedy for obtaining compensation is various in the several states. In some of them the propertyholder must appear before the city council and there present his claim for damages, which damages are thereupon estimated by some tribunal provided by statute. In other cases a proceeding must be brought in court by the corporation exercising eminent do 29 The state of Ohio has always maintained municipal liability for such incidental injuries; Goodloe & Smith v. Cincinnati, 4 Ohio 500. main against the property-holder, wherein the property is condemned for the public use, and the damages therefor are duly ascertained; or, if the municipality shall omit to take this proceeding before entering upon the work of improvement, the property-holder may bring it for the purpose of obtaining compensation, with practically the same result as if brought by the municipality. It has often been held that payment of damages must precede the taking of private property for public use; but unless this is provided by statute it has generally been held sufficient that adequate provision is made for ascertaining and securing the compensation.30 The property-holder is entitled to demand compensation as soon as the appropriation has been definitely decided upon, without waiting for the actual taking. 73. Special assessments.-Special assessments for municipal improvements are authorized and made upon the idea that property enhanced in value by such improvements should bear the expense thereof, not as a burden, but as compensation for benefits specially conferred thereby. The authority of the legislature to provide for these local assessments has been established by repeated judicial decision declaring not only their constitutionality, but also their reasonableness. For example, the Supreme Court of Missouri has happily said: "While the few ought not to be taxed for the benefit of the whole, the whole ought not to be taxed for the few. General taxation for a purely local purpose * * * is unjust. It burdens those who are not benefited, 30 Sage v. Brooklyn, 89 N. Y. 189. |