198 Ky. 143 | Ky. Ct. App. | 1923
Opinion of the Court by
Reversing.
The appellant, Bailey Construction Company, a corporation, attempted by this action in equity to enforce, as against certain lots in Harlan, Kentucky, the property of the appellee, A. B. Cornett, liens aggregating in amount $1,371.42 arising, as alleged, out of its construction by authority of and under a contract with the city
The appellee filed in the court below a general demurrer to the petition, which that court sustained. Appellant duly excepted to this ruling and declined to further plead; thereupon the court entered judgment dismissing the petition at its cost, and from the judgment indicating these rulings the latter has appealed.
The General Assembly of this state in March, 1916, by chapter 113, Acts 1916, page 675, amended the previous statute and greatly enlarged the powers of the boards of council of cities of the fourth class, to which Harlan-belongs, respecting their control, ■ construction and reconstruction of streets, alleys and other public ways in such cities. The provisions of this' amendatory act, together, with such of those of the prior statute as seem to have been retained by it, are now contained in sections 3562 to 3579, inclusive, Kentucky Statutes (edition 1922). Prior to the-passage of the act of March, 1916, the statute respecting cities of the fourth class made no provision for the creation .or enforcement of liens upon or against the abutting real estate of property owners for the reconstruction of streets, but such liens are allowed by the present statute for reconstruction as well as original construction of streets.
The-specific powers conferred by the statute, supra, on the boards of council of cities of the fourth class with respect to the control of their streets and other public ways are enumerated in section 3562; but the power of the council to improve them at the cost of the abutting property owners, providing for the assessment of such property for such cost and the giving of liens thereon for its payment, are more particularly set forth in the succeeding section, 3563. By section 3570 it is provided that the council at least thirty days before ordering, through the passage of an ordinance, the improvement of any street, alley, public way or sidewalk as allowed by section 3563, shall adopt and cause to be-published in a newspaper, as therein directed a resolution designating the streets, public ways or sidewalks to be improved, etc. This section also provides -for the filing of petitions • by owners of-property abutting the streets or other pub-
Sections 3571-3573 relate further to the powers of the council and street committee in deciding what streets or other public ways shall be improved, the material to be used in same, plans and specifications for the work, requiring of estimates, advertising for and accepting of bids, letting of contracts for work, and the like.
Section 3574 also contains an enumeration of further powers that may be exercised by the council; among them the authority to consider protests, hear evidence, reject or accept work of construction, apportion the cost thereof against abutting property, and take such steps, by action or otherwise, as may be necessary to enforce the liens therefor in the interest of the city. This section also provides :
“Nor shall any error of the proceedings of the board of council exempt any property from the lien for, or payment of, such taxes after the work has been done and accepted as provided in this section; but the board of council or the courts in which suits are pending shall make all corrections, rules and orders to do justice to all parties concerned; and in no event shall the city be liable for any part of the cost of such improvement except as provided in section 3563. Such liens may be enforced, as other liens on real estate, by action brought in the name of the city or the contractor entitled thereto, and in any such action an allegation in substance that the improvement had been made and the work accepted pursuant to and by ordinances of the city duly passed in accordance with law, shall be a-sufficient pleading of the ordinances and proceedings under which the work was done and accepted without setting out the same in full. ... ”
In the very recent case of Ball v. Geo. M. Eady Co., 193 Ky. 813, we had occasion to consider the meaning of section 3574 of the statute, supra. In that case it was complained by the appellant that the petition did not state a cause, of action because of its failure to allege the passage by the city council of the resolution provided for
"We regard the case, supra, conclusive of the case at bar. It is true the petition here sets out the facts relating to the improvement and also the passage of the preliminary resolution, ordinances and making of the contract under which it was effected, but this was unnecessary under section 3574, and much of it mere surplusage.
The fact that the preliminary resolution determining the necessity for and character of the improvements and designating the streets 'to be improved which the court compelled the appellant to file with its petition as an exhibit, does not upon its face show that it was passed by a yea and nay vote or was published, does not necessarily import that it was not so passed or published or' render it contradictory of the averments of the petition; nor does the failure of any of the ordinances ex-hibited-to show that it was passed by a yea and nay vote, or published as re-quired by the .statute, make it contradictory -of the averments of the petition. The resolution and ordinances were made exhibits not as a basis for the action, but for use as evidence, and the facts as to the manner.of their passage or whether they were published as required, may be proved after the issues are completed and when the case is tried by the minutes of the city council meetings at which they were acted upon.
In Louisville v. Cornell, 14 R. 398 (Sup. Court), it was held the rule that where there is a conflict between the allegations of a pleading and the'-exhibit filed with it, that the latter should control, has- no application where the petition is framed for the enforcement of an
It will be observed that the exhibits that were filed only relate to the making of the improvements; none of them to their completion, the.acceptance.by the city of the work, or the apportionment of the cost;.all of which is alleged in the petition and admitted by the demurrer. The crucial question therefore is, whether the work was done according to contract with the city, accepted by the city, and the amount due by defendant apportioned to him by the city authorities, as alleged in the petition. As this has been done, in order to defeat the appellant’s lien the appellee must by answer set up, and by proof establish, such a defense as'would effect that result. Johnson v. McKenna, 171 Ky. 389; City of Maysville v. Davis, 166 Ky. 565; Mulligan v. McGregor, 165 Ky. 231; Ball v. Geo. M. Eady Co., etc., 193 Ky. 813.
It is our conclusion that the petition sufficiently states a cause of action under the statute, supra; hence, the action of the circuit court in sustaining the demurrer to same must be held reversible' error. ' Other questions raised on the record are not passed on. Judgment reversed and cause remanded, with directions to the lower court to set aside the judgment, overrule thé demurrer to the petition and permit such further proceedings in the case as may not be inconsistent with the opinion.