drainage

improvement, the court pointed out that the improvement was initiated by the state, and that by the state's legislation the municipality was denuded of all freedom of action; it had no choice of contractor or price; all the financial power in respect of the scheme was placed directly by state action, without the city's consent, in one of its official boards; thus denuded of freedom of action, it may properly insist upon the narrowest limits of responsibility; and if such board was derelict of duty the city may properly say to a complaining party, "Your remedy was in mandamus to compel prompt and efficient action by that board." The court further said that, supposing the dereliction of the board of administrators was an omission on the part of the city, the mere fact of noncollection of assessments does not prove dereliction of duty, where they were charged upon property not worth the assessment, and therefore not collectable.

In Pontiac v. Talbot Paving Co. (1899) 48 L.R.A. 326, 36 C. C. A. 88, 94 Fed. 65, rehearing in (1899) 48 L.R.A. 330, 37 C. C. A. 556, 96 Fed. 679, it was held that the contractors could not recover against the city in an action for damages for failure to order a new assessment, the remedy being solely by mandamus. The contract in this case provided that payment should be made when a special tax was collected, and that the contractors should make no claims against the city in any event, except from such collections.

A municipality is not liable for the negligent failure of its officials to make an assessment sufficient in amount, where the assessment is made before the bonds are issued, and the statute provides that the purchasers must look alone for payment to the proceeds of the special assessment, with a right to enforce the lien on the property assessed. CAPITOL HEIGHTS V. STEINER (reported herewith) ante, 1264.

In Union Trust Co. v. State (1908) 154 Cal. 716, 24 L.R.A. (N.S.) 1111, 99 Pac. 183, the court quotes with ap38 A.L.R.-82.

parent approval from Dillon on Municipal Corporations, § 482: "The right to a general judgment should, in our opinion, be limited, in any event, to cases where the corporation can afterwards reimburse itself by an assessment. For why should all be taxed for the failure of the council to do its duty, in a case where the contractor has a plain remedy, by mandamus, to compel the council to make the necessary assessment and proceed in the collection thereof with the requisite diligence?"

In Vider v. Chicago (1896) 164 Ill. 354, 45 N. E. 720, the contractor was denied the right to recover interest from the municipality during the delay consequent upon a resolution by it staying collection, under a statute providing for interest where money is unreasonably withheld, the resolution not amounting to a tort, although the city was not free from blame.

In Foster v. Alton (1898) 173 Ill. 587, 51 N. E. 76, where the contract expressly provided that the contractor should in no event make any claim against the city, except for its share of the cost of the sewer, and agreed to take all the risk of the invalidity of special assessments, provided that in case an assessment were declared invalid the city should make a new assessment, the city was held not liable generally, where the original assessments were invalid because the ordinance for the improvement did not sufficiently describe the character thereof, the defect, however, being one that could be remedied by amendment making the ordinance perfect so that a new and valid assessment could be levied. The court distinguished the case from the Maher Case (1865) 38 Ill. 266, where the city had no power under its charter to levy special assessments, and the attempt to do so was necessarily void, and Chicago v. People (1870) 56 Ill. 327, where the property sought to be assessed had been exempted by previous agreement.

So, in People ex rel. Talbot Paving Co. v. Pontiac (1900) 185 Ill. 437, 56 N. E. 1114, the original assessment being invalid because the ordinance conferred discretionary powers on the

city engineer, and the court being of the opinion that the defect was a curable one, so that a new assessment could be made as provided by the statute in such a case, it was held that mandamus would be ordered as prayed in the petition.

So, in Alton v. Foster (1904) 207 Ill. 150, 69 N. E. 783, where the contract provided that the contractor would make no claim against the city in any event except for its share of the cost of the sewer, and agreed to take all risk of invalidity of special assessments, it was held that the city was not liable in assumpsit because of the neglect or refusal of its officers to levy a new or supplemental special assessment, to remedy defects in the original assessment. The court said, in effect, that the remedy was by mandamus to compel a new assessment.

To the same effect as the Foster Case is Farrell v. Chicago (1902) 198 Ill. 558, 65 N. E. 103. The court observed that, if it was the duty of the city to make a new assessment on the property benefited to pay the balance of the cost of the work, the performance of such duty could be compelled by mandamus, but the city was not liable in an action for the balance due.

The refusal of the proper officials to certify the completion and acceptance of the work, as provided by the local improvement act, does not render the city liable in an action on the case for the contract price, the remedy being by mandamus to enforce the performance of that duty. Price `v. Elgin (1912) 257 Ill. 63, 100 N. E. 133.

Where property needed for an improvement which is to be paid for by special assessment on the property benefited, to the amount that the same may be assessed therefor, the remainder to be paid by general taxation, is voluntarily conveyed to the city before compensation is paid, the property owner is not entitled to an absolute and unconditional judgment against the city for the compensation. Chicago v. Thomasson (1915) 259 Ill. 322, 102 N. E. 748. The court obThe court observed that if the city fails to exer

cise due diligence in making the assessment against the property specially benefited, it can, after demand, be compelled to do so by mandamus.

Where public works are to be paid for from special assessments, and the city or village does not agree or obligate itself to pay any part of such assessments, then, and in such case, the city is not liable in an action for damages because its officers have failed to do their duty, either in col lecting such special assessments, or paying them over to the contractor. Broad v. Moscow (1908) 15 Idaho, 606, 99 Pac. 101.

In Greencastle v. Allen (1873) 43 Ind. 347, it was held that, on the refusal of the proper city officers to make estimates and to issue precepts against the property holders, the contractors had no action for damages against the city, but should proceed by mandate against the officers.

It seems that under a contract by which the property owners' share of the cost was to be collected by the contractor at his own expense, and the city failed to levy an assessment, and there was no method by which the city could be reimbursed for the property owners' share, if compelled to pay the contractor, his remedy was solely by mandamus to compel the levy. Tipton v. Jones (1881) 77 Ind. 307.

In Blain v. Delphi (1923) — Ind. App. - 139 N. E. 339, the court held that, upon discovering the worthless condition of the work, the council properly rescinded and refused to make a final assessment until the work was performed according to the contract, but said that if the work had been been completed according to the contract, and then the city had refused to make the assessment. the remedy would have been by mandamus against the city council, and not for damages against the city. (See, however, the opinion of the supreme court in this case in (1924) Ind. —, 145 N. E. 764, in which it is said in effect, that if, after the contractor had partially performed, the city wrongfully and without his consent did acts by which it

was made impossible for him to complete the work so as to perfect his right to enforce assessments against abutting property, it would incur a liability to him for the amount he had earned and which was thus made uncollectable. This point, however, is beyond the scope of the present annotation.)

Crawford V. Mason (1904) 123 Iowa, 301, 98 N. W. 795, holding that the municipality is not liable because of its failure to make a reassessment, is not within the scope of the annotation, as the invalidity of the original assessment was due to the failure of the contractor to perform his contract, and the case was not a proper one for reassessment.

In Citizens' Bank v. Spencer (1904) 126 Iowa, 101, 101 N. W. 643, the court stated, among other reasons for denial of the liability of the municipality, that the city should have been given an opportunity to reassess after the passage of the curative act, curing the defects in the improvement proceeding.

According to the abstract of the decision in Preston v. Roberts (1883) 5 Ky. L. Rep. 57, it is held that a contractor could not recover from the city of Louisville for street improvements, when the owners of adjacent property had been released from liability by reason of the failure of the city council to take proper steps to make them liable.

The provision of the Kentucky statute that in no event, if such improvement be made as is provided for, either by ordinance or contract, shall the city be liable without the right to enforce it against the property receiving the benefit thereof, protects the city from responsibility, except in cases where it had no power to make the improvement at the cost of the owners of the abutting property. Covington v. Noland (1905) 28 Ky. L. Rep. 314, 89 S. W. 216 (denying liability).

In Goodrich v. Detroit (1864) 12 Mich. 279, it was held that the city was not liable to the contractor for money collected from assessments by the collector, who defaulted and failed to pay it over to the city, where the

contract provided that the contractor should not receive or demand payment for the work until the money therefor should have been collected and actually paid into the city treasury upon the assessment rolls.

In Second Nat. Bank v. Lansing (1872) 25 Mich. 207, denying the general liability of the municipality upon an order directing the city treasurer to pay a specified sum out of any money in his hands belonging to a grading fund, the court observed that, if the fund is supplied, payment can be compelled directly by mandamus; if it is not supplied, and if there are means which could lawfully be resorted to for its replenishment, the fault lay in neglecting to replenish it, and the remedy must have regard to that failure.

And the neglect of the municipal officers to make the assessment does not render the city generally liable, where the charter provides that the city shall "not be liable in any manner whatever for, or on account of, any work done, and which is to be paid for in the manner provided in this section;" and the fact that neither the ordinance under which the work was done, nor the contract, specified the manner of payment, is immaterial. Kiley v. St. Joseph (1878) 67 Mo. 491.

The remedy, in case of refusal to deliver tax bills or certificates is by mandamus, and not by an action to hold the municipality generally liable. Carroll v. St. Louis (1878) 5 Mo. App. 584.

In National Bank v. Oklahoma City (1912) 32 Okla. 432, 39 L.R.A.(N.S.) 444, 122 Pac. 644, where the decision was in favor of the city, the ground upon which it was sought to be held Iliable was alleged negligence of its officers in issuing duplicate assessment certificates, or in permitting them to be stolen.

Where the charter contemplates that the certificates are to be delivered and received as payment, the holder, if they have been delivered, can sustain no action against the city for the money, but must cause it to be collected in the manner pointed out by the charter, as taxes against the

lot; if the proper officers neglect to deliver the certificates, as required by the charter and the contract, this does not turn the claim into a money demand against the city, but the remedy is to compel a delivery of the certificates by mandamus, assuming that the officers had authority to contract for the work. Whalen v. LaCrosse (1862) 16 Wis. 271.

Where the charter provides that "in no event, where work is ordered to be done at the expense of any lot or parcel of land, shall either the city or any ward be held responsible for the payment thereof," the holder of a street commissioner's certificate has no action against the city for failure to collect the assessment; he should proceed against the proper officer to make him do his duty. Fletcher v. Oshkosh (1864) 18 Wis. 228.

In Reilly v. Albany (1889) 112 N. Y. 30, 19 N. E. 508, notwithstanding the contract provision that payment for the work should not be required until the lapse of thirty days after due apportionment and assessment should have been duly approved and confirmed by the common council, and until the same should have been collected, the city was held liable in an action for the contract price, it appearing that the board of apportionment had wrongfully rescinded the certificate of performance previously. given by the street commissioner, and refused to make any further apportionment and assessment, following a judgment setting aside a previous apportionment upon the ground that the board of apportionment had not granted the hearing required by law. The court said that the resolution of the board imposed no bar to the plaintiff's cause of action, and put no duty upon him to seek a reversal of its determination by mandamus or otherwise.

So, in Weston v. Syracuse (1899) 158 N. Y. 274, 43 L.R.A. 678, 70 Am. St. Rep. 472, 53 N. E. 12, involving a similar contract, it was held that a right of action for damages against the city accrued on its wrongful refusal to accept a contract as completed, and make assessments to pay

the contractor. The court said that if the contractor finds, as in the case of People ex rel. Ready v. Syracuse (1894) 144 N. Y. 63, 38 N. E. 1006, infra, that the city has not proceeded with reasonable diligence to collect the assessment and turn over the proceeds to him, he may, and should, proceed by mandamus to compel such action on its part; but where a municipality disables itself from performing the contract by such action on its part as makes void, and therefore uncollectable, an assessment for the purposes of providing compensation, or refuses to perform the contract on its part, then an action against the city for damages sustained by reason of its failure to perform the contract may be maintained. The judgment against the city in the Weston Case was reversed on a point not within the scope of the annotation.

So, upon the authority of these cases, it was held in Palmer v. Brooklyn (1895) 11 Misc. 459, 32 N. Y. Supp. 739, affirmed in (1895) 146 N. Y. 379, 41 N. E. 90, without opinion, that the city was liable for services in preparing maps required in proceedings to open a street, notwithstanding the provision that the plaintiff must look to the lien of the assessment for his compensation, it appearing that the city had, by its affirmative action, rescinded and discontinued the proceedings, and in that way prevented the possibility of levying and collecting an assessment for such expenses.

The doctrine of these cases was followed in McCann v. Albany (1896) 11 App. Div. 378, 42 N. Y. Supp. 94, affirmed in (1899) 158 N. Y. 634, 53 N. E. 673, where the city was held generally liable for failing to assess the full amount, erroneously claiming a right to make deductions therefrom. The court said that the distinction between the Reilly Case and the Syracuse Case was that, in the former, the action was based upon a breach of the contract, while the latter was a proceeding to prevent a breach of the contract; that in the Syracuse Case it was open to the contractor to say that the city had not yet been guilty of an absolute breach of contract, but of such

laxity in making ready to perform it as threatened its breach, and that his remedy in such case was mandamus to secure such active diligence; but in the case at bar, and in the Reilly Case, the contract was broken not only because of the unreasonable neglect of the city to perform, but because of its absolute refusal to perform except in part.

And in Quin v. Buffalo (1881) 26 Hun (N. Y.) 234, the city was held liable where the common council by resolution annulled an assessment against the property benefited, and refused thereafter to take any action in the premises, except to attempt unsuccessfully to pass its rescinding resolution over the veto of the mayor. The terms of the contract in this case do not appear.

The distinction touched upon in the New York cases above cited between the situation arising from mere neglect to take the proper steps to impose the cost upon the property, a condition remediable by mandamus, and the situation where the city has disabled itself from taking, or has definitely refused to take, such steps.

It is further emphasized by the case of People ex rel. Ready v. Syracuse (1894) 144 N. Y. 63, 38 N. E. 1006, where the court, in holding that mandamus was the proper remedy, said that no action was maintainable by the contractor against the city, it appearing that the common council had adopted a resolution directing the city assessors to assess the cost of the work upon the abutting property, and that a part thereof had been collected, although nothing further had been done to enforce the assessment.

In Harrison v. New Brighton (1905) 110 App. Div. 267, 97 N. Y. Supp. 246, the court said generally that the proper remedy for the contractor, if the trustees refuse to levy and collect the assessment, as required by a contract providing that payment should be made as soon as the assessment shall have been collected, and not before, is by mandamus to compel the officers of the village to proceed with such assessment and collection. It is not apparent in this case, however, that

there was a definite refusal, as distinguished from a mere delay, in enforcing the assessment.

So, in Tone v. New York (1877) 70 N. Y. 157, affirming (1876) 6 Daly, 343, under a contract for local improvements providing that the final payment should not be made until the local assessment for the expense thereof had been confirmed, it was held that, if the board failed to do its duty as to confirmation, the city was not liable, as the contractor had the same power to compel the board to do its duty as the city had.

Some of the earlier New York cases also seem to hold the municipality liable in case of unreasonable delay in providing the fund by assessment. Cumming v. Brooklyn (1845) 11 Paige (N. Y.) 596; Beard v. Brooklyn (1860) 31 Barb. (N. Y.) 142; Bowery Nat. Bank v. New York (1876) 8 Hun (N. Y.) 224; Smith v. Buffalo (1887) 44 Hun (N. Y.) 156; Baldwin v. Oswego (1865) 2 Keyes (N. Y.) 132. These cases, however, so far as they predicated liability upon mere delay, as distinguished from a definite refusal to proceed, would seem to be opposed to the distinction made by the later New York cases.

It is the settled law of Washington that a city will not be rendered liable, as a general rule, for its failure, for any cause, to levy and collect local assessments to pay purely local assessment obligations, even though the power to levy and collect such assessments be entirely lost by lapse of time. State ex rel. First Nat. Bank v. Hastings (1922) 120 Wash. 283, 207 Pac. 23. Although the point is beyond the scope of the annotation, it may be noted, as indicating the strength of the rule as above stated, that, in consequence of it, judgments taken by default or consent against the city, after the rule had been established, were held void. There was some conflict among the earlier cases in Washington.

In McEwan v. Spokane (1896) 16 Wash. 212, 47 Pac. 433, the court apparently took the position that where the city contracted to provide the fund, and had failed to do so, and had