City of Louisville v. Murphy

Opinion by

Judge Lindsay :

Murphy distinctly alleges in his petition that the contract under which the work on Third street, Portland, was done was approved • by both branches of the General Council as provided for by the general ordinance regulating the manner in which such contracts should be made and executed.

The city not only fails to deny this allegation, but is now in this court by her attorney insisting that it is true.

The property holders escape responsibility because one branch of the general council failed to enter on their journals the order or resolution approving the contract, and hence there is no competent evidence as against them of its approval.

We are of opinion that the testimony of McCleary and Vaughan sufficiently establishes that the approval of the contract by the common council was not entered on its journal at the time it was approved nor at any time when the person or persons who made the entry had the right to do so.

The entry had certainly not been made on the 1st of July, 1870, nearly one year after the contract was approved. According to the statements of Vaughan it was made after that time, and after Duer-son, the president, and one-half of the'members of the general council in office in August, 1869, had either ceased to be members or were holding office under a new election.

Whilst keeping a correct'journal does not imply that the entries shall be made and the proceedings signed or approved at each meeting, it certainly is necessary that the journal shall be made up by the body where proceedings are recorded, and before an election may have substituted for one-half the members- of such body persons who were not present at the time, and who can not know whether the journal made up under their supervisiones correct or not.

The cases of McKegney v. Obst & Johnson are conclusive as to the law of this case. As the failure of the common council to 'keep a correct journal of its proceedings results in the exoneration of the property holders; judgment for the amount due was properly rendered against the city.

January 5, 1873. Fox, for appellant. Eastin & Calloway, for appellee.

Judgment affirmed.