185 Ky. 280 | Ky. Ct. App. | 1919
Opinion of the Court by
Affirming.
Fort Thomas is a town of the sixth class, and the power of the board of trustees to construct, or cause to be constructed, improvements upon the streets, is controlled and governed by the statutes, which constitute what is ordinarily designated as the charter of towns of that class. The greater number of authorities cited by counsel in their briefs as well as the greater number of adjudications of this court upon subjects kindred to that in controversy, have very little bearing upon or relation to the issues arising in this action. Most of the adjudications of this court upon subjects kindred to that in controversy, here, are with reference. to the charters of towns of a different class from that of Fort Thomas, or
On December 18, 1914, the board of .trustees adopted an ordinance, which is styled, “An ordinance providing for construction, reconstruction and maintenance of sidewalks in the town of Fort Thomas, Kentucky;” and providing penalties for its violation. Section 1 of the ordinance, is as follows:
‘ ‘ That, hereafter, all sidewalks made within the town of Fort Thomas, whether original or reconstructed, shall be constructed of ‘artificial stone,’ as provided, in section 4 hereof.”
Section 2 of the ordinance, is as follows:
“It is hereby made the duty of each and every person owning lots or real estate fronting and abutting upon any public street, or thoroughfare of this town which shall be ordered to be improved by sidewalks, to, at once, construct and thereafter maintain in a suitable state of repair a sidewalk or pavement along by, and in front of his, or her, or their said lots or property, whenever and so far as the same so fronts or abuts upon said public street.”
Section number 3, provides as follows:
“No sidewalk, now constructed, shall be subject to the provisions of this ordinance until the same shall have been inspected and condemned by the road and sidewalks committee and town engineer.”
“Unless otherwise ordered by a resolution of the board of trustees all sidewalks constructed or reconstructed as herein provided, shall be made four feet in width, and the center, of said improved sidewalks, the midway between the property and curb lines thereof, the grade, in all cases, to be fixed by the town engineer.” Section number 5, is as follows:
“All sidewalks shall be constructed in conformity with the following specifications.” Then there follows in subsections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13, a minute description of the materials to be used, and entire manner of its construction together with dimensions in every particular.
Subsection 14 of section 5, provides as follows :
“Grade of sidewalks. In full width sidewalks, the pavement will begin three-fourths of an inch above the grade of the curb, and rise at the rate of. three-eights of an inch, to one foot, to the property line. The alignment and slope of all pavements, less than full width of the sidewalk, will'be subject to a special direction of the town engineer.”
Section 6 of the ordinance, is as follows:
“Any and all sidewalks not improved as provided in this ordinance, within thirty days from, and after the passage of a resolution, ordering the same, may be done by the town in such manner as it £ees fit, and the cost thereof, shall be charged to, and held a lien against the abutting property in front of, or about which said improvement has been made. ’ ’
On May 7, 1917, the committee on roads and sidewalks, and the engineer of the town, by a written report to the board of trustees, condemned the cinder path or sidewalk, at that time existing, which abutted on the property of the appellant, and recommended, that a “cement sidewalk” should be constructed there.
It seems to be conceded, that the term, “cement sidewalk” describes the character of sidewalk, provided for, in the general ordinance of December 18, 1914, and no complaint is made by the appellant of it being other than the same character of sidewalk.
The report of the road and sidewalks committee and engineer, was adopted on the date of the report, and a
Thereafter, on June 4,1917, the board of trustees, by a resolution adopted by the affirmative votes of all of its members, instructed its road committee to secure bids for the construction of the sidewalk, and to have the same constructed, and, thereafter the road committee, after due advertisement for the bids, entered into a contract with the appellee for the reconstruction of the sidewalk, and in accordance with this contract, the appellee built the sidewalk in accordance with the specifications and requirements of the general ordinance upon the subject. On June 16, 1917, the board of trustees, four members being present, and all voting- affirmatively, adopted an ordinance, by which the board ratified the actions of the road committee and approved the contract, made with the appellee, accepted the sidewalk as having been completed in accordance with the contract, and with the general ordinance, and directed a warrant to issue in favor of the appellee for the sum of $140.00, which was the contract price for the building of the sidewalk and, in accordance with this ordinance, a warrant was issued and delivered to the appellee, for the sum named, against the real estate of appellant upon which the sidewalk abutted. The appellee, in his amended petition, alleged that prior to the year, 1917, the grade of the sidewalk had been fixed by an ordinance of the board of trustees of the District of Highlands, by which name, the taxing district, thereafter, constituting the town of Fort Thomas, was then called, and that at the time the appellant was ordered to reconstruct the sidewalk, its grade had already been established and fixed.
The contention, that a lien does not exist upon appellant’s property, because a formal ordinance was not adopted by the board of trustees, applying to the specific improvement ordered, is not tenable. Of course, it is elementary, that the right to. a lien upon the property of the abutting owner is not a common law right, and is a creation of the statute, and if the requirements of the statute are not substantially complied with by the board of trustees, in providing for the improvement, the lien fails, and there is no departure on our part from this doctrine. The question then to be determined is, what power the statute, relating to towns of the sixth class, gives to the board of trustees in the premises, and what requirements are imposed upon it, in the proceedings, necessary to create the lien. The statutes relating to the subject, and which apply to towns of the sixth class, are as follows:
Section 3706, Ky. Stats. “The.board of trustees is hereby authorized and empowered to order any work, they deem necessary to be done upon the sidewalks, curbing, sewers, streets, avenues, highways and public places of such towns. The costs and expenses incurred in repairing streets, avenues, highways, sewers, and public places, shall be paid out of the general fund of the town.
“"Whenever the board of trustees shall determine upon the construction or reconstruction of streets, avenues, highways, sewers and public places at the expense of the abutting property, they shall cause the same to be done, as follows:
“The ordering of such improvement shall be, by ordinance of the board of trustees and the contract therefor, awarded to the lowest and best bidder after proper advertisement for bids. The said board of trustees shall require the accepted bidder to execute a bond to the town with good and sufficient security to be approved by said board of trustees for the faithful performance of his contract.”
It is provided in the remainder of this section, that the board of trustees may require the improvements above mentioned, to be made at the costs of the abutting property owners upon the petition of a majority of the abutting owners, or without such petition, at a regular meeting 'by the affirmative vote of four members of the board.
Section 3707, Ky. Stats., provides, as follows:
“Improvement and repair of public* property — When done by contract. In the erection, improvement and repair of all public buildings and works, in all streets and sewer work, and in all work in and about streams, bays, or water fronts, or in or about embankments or other*286 works for protection against overflow, and in furnishing any supplies or materials for the same, when the expenditure, required for the same, exceeds the sum of one hundred dollars, the same shall he done by contract and shall be let to the lowest responsible bidder, after due notice, under such regulations as may be prescribed by ordinance.”
These statutes are somewhat confusing, but it will be observed, that they make a distinction between what is included, when the terms, “streets, avenues, highways, sewers and public places” are used, and when the terms, “sidewalks and curbing” are used. Although in the second paragraph of section 3706, supra, the terms, “sidewalks, curbing, streets, avenues, highways, sewers and public places” are all used, the fact that the terms “sidewalks and curbing” are specifically named, indicates, that they are not the same as meant, nor intended to be included, in the term, “public places.” In the first paragraph of the statute, supra, a clear distinction is made when it empowers the board of trustees to “order any work, they may deem necessary to be done upon the sidewalks, curbing, sewers, streets, avenues, highways and public places,” and follows this with the provision, that the costs of “repairing streets, avenues, highways, sewers and public places, ’ ’ should be paid out of the general funds of the town, and follows this immediately with a provision, that the expenses, incurred in making “sidewalks and curbing,” should be paid by the owners of the abutting property, if the trustees should so elect. This makes it plain, that the legislature did not intend to , include “sidewalks and curbing,” in the term, “public places.” The second paragraph of the statute, authorizes the trustees to require the owners of abutting property to pay the expenses of constructing or reconstruct ing sidewalks, curbing,' streets, avenues, highways, sewers, and public places, if they elect to do so, but, the above mentioned distinction is again clearly made, when the statute defines the manner in which the construction and reconstruction of “streets, avenues, highways, sewers and public places” shall be made at the expense of the abutting property owner. It declares that the orcler-ing of the work to be done, shall be by an ordinance, aaid that the contract shall be let to the lowest and best
The contentions, that the trustees did not prescribe the details, and specifications of the sidewalk, including the grade, and did not direct its sidewalk committee to advertise for bids to do the work, and could not delegate to the committee nor to its engineer the power to prescribe the specifications nor the grade, and for such reason the lien failed, does not, under the facts of this case, present a good defense to the action. The ordaining of the specifications of a sidewalk improvement as well as the grade, are legislative in their character, and' such things, the board of trustees must fix, by ordinance or resolution, and it can not delegate the authority to do these things to any one. Hardinsburg v. Mercer, 172 Ky. 661; Goose v. Joyes, 4 Bush 468; Zable v. Louisville Baptist Home, 92 Ky. 94. This will not be disputed.
However, the general ordinance upon the subject of sidewalks adopted on December 8, 1914, fixes the specifications as to materials and manner of the construction of all sidewalks, to be constructed or reconstructed in the town, and prescribed their width, except, when by resolution, they were ordered to be made of a different width, and also, fixed their grades when the sidewalk was to be the full width of four feet, and when it was the reconstruction of a sidewalk, as in this case. '
■It appears, from the report of the sidewalks committee, that a sidewalk, made of cinders, was already in existence, at the place where appellant was ordered to construct a sidewalk. In such state of case, the fourth and sixth sections of the ordinance being construed together, the grade of the new sidewalk is fixed by the curbing, which then existed at that point. The resolution, requiring appellant to construct a sidewalk, did not provide, that it should be of less width than is required by the genera! ordinance, which is four feet, and hence, the resolution,
The contract to reconstruct the sidewalk, to be a com tract of the town, must necessarily have been made by the board of trustees, but, this did not preclude the board from having its committee, on sidewalks, to do for it such ministerial duties, as receiving bids and superintending the work, but, the contracts, if any were made, should be made by the board of trustees, and it should keep the whole matter, within its control, but, a contract, which was made by the committee, under a mistake of its power to do so, would not be void, on that account, if thereafter the bid was reported to the board and was accepted, and the contract entered into by the board itself. The board of trustees having full power to require the work to be done, at the cost of the abutting property owner and to enter into a contract to have the work done, and the proceedings, under which the contract was made, not being invalid, the board of trustees had the power to ratify it and to make it the contract of the town.
The judgment is therefore affirmed.