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HITCHCOCK V. GALVESTON, 96 U. S. 341 (1877)
U.S. Supreme Court
Hitchcock v. Galveston, 96 U.S. 341 (1877)
Hitchcock v. Galveston
96 U.S. 341
1. Where a city council is vested with power to cause sidewalks in the city to be constructed, it may authorize the mayor, and the chairman of the committee on streets and alleys, to make, in its behalf, and pursuant to its directions, a contract for doing the work.
2. A provision in the charter that the city council shall not borrow for general purposes more than $50,000 does not limit the debt of the city, nor prohibit the council from entering into a contract involving an expenditure exceeding that amount, for special improvements, such as the grading and paving of streets and the construction of sidewalks, which are authorized by the charter.
3. Such a contract is not rendered wholly inoperative because it provides that the work done under it shall be paid for in bonds of the corporation the
issue whereof was not authorized by law. The contract, so far as it is in other respects lawful, remains in force, and for the breach thereof the corporation is liable.
4. The contract in question in this case construed, and the proviso therein in reference to the consent of the owners of the property fronting or abutting on the pavements to be laid held to have reference to the materials to be used in constructing them, and not to the execution of the work itself.
The judgment in the court below having been given upon a demurrer to the plaintiffs' petition, there is no controversy about the facts.
The City of Galveston, proposing to improve some of its sidewalks, entered into a contract with Dexter G. Hitchcock and James W. Byrnes, the plaintiffs, by which they agreed to furnish the materials and in whole or in part to do the work necessary for the improvement. The work consisted of filling, grading, curbing, and paving. By ordinance, it had been determined that the sidewalks should be paved with one or the other of the following-described materials:
"Asphalt, hard bricks laid in a bed of Portland cement and properly grouted, concrete made of Portland cement mixed with other proper materials, or with tile or stone laid in a bed of Portland cement."
The ordinance contains a provision that the "owners of lots or parts of lots who represent in each block a majority of the feet fronting or abutting upon any sidewalk of the same which is to be paved" shall have the
"right . . . to select and designate which of the said materials they prefer and desire to be used in the construction of the pavement to be laid down on the said designated sidewalk,"
reserving, however, to the chairman of the committee on streets and alleys the right to determine the material to be used in case the lot owners failed to make a selection. Of course, grading, filling, and curbing were a necessary preparation to any of these different modes of paving, and the city ordinances made provision for these several kinds of preparatory work, as well as for the paving. It was in pursuance of these ordinances that the contract was made. By it, the city engaged in the first instance to pay to the plaintiffs the sum of $1.75, in bonds of the city, styled "Galveston city bonds for sidewalk improvements," to be taken at par, for every square
yard of pavement laid down by them upon certain designated sidewalks, the pavement to be composed of asphalt in bulk, rolled solid to the thickness of three inches; provided, however, the plaintiffs
"obtain the written consent of the owners of the property fronting or abutting upon the said sidewalks to the laying down of the said pavement, which written consent or selection of said pavement shall be filed in the mayor's office with the city clerk."
Following this conditional arrangement for an asphalt pavement, where such a pavement might be selected, the parties by the contract entered into other engagements. The city undertook to pay to the plaintiffs in the said bonds, to be taken at par, the sum of $1.25 for every cubic yard of filling necessary to be done "upon any and all of the said sidewalks preparatory to the laying of any pavement thereon," the above price to include not only the filling but the grading, tamping, and rolling.
The contract next contained an engagement of the city to pay to the plaintiffs in the said bonds, to be taken at par, forty-five cents for each square foot of wooden curbing (to be composed or made of three-inch cypress) "that might be needed or used in filling up and grading the said sidewalks preparatory to putting down the said pavement, or any other."
The contract also bound the city to pay the plaintiffs for wooden curbing needed or used for putting down the pavements that were to be only six feet in width. In consideration of all these promises of the city, the plaintiffs bound themselves to lay down and fabricate the said pavement in the manner and style above set forth and stipulated, and they also bound themselves to fill, grade, tamp, roll, and curb the said sidewalks as above set forth and stipulated, and to receive in payment for all the said work the respective prices above stated in Galveston city bonds for sidewalk improvement at par. They further bound themselves to commence the work within twenty days and to finish it without unnecessary delay.
Accordingly, they proceeded to fulfill their engagements. They made contracts for labor and materials, performed a large amount of work, completed the curbing and filling of some sidewalks, and were going on in earnest to finish the entire work when,
at the expiration of forty-six days, they were compelled by force and by authority of the city to abandon their work without any fault of their own. On the 20th of April, 1874, the city council declared the contract null and void and directed the mayor to notify the contractors to that effect, which he did two days thereafter. Hence the present suit to recover damages for the breach of the contract.
The demurrer to the petition was sustained, and judgment rendered for the defendants. The plaintiffs sued out this writ of error.
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