116 Ky. 157 | Ky. Ct. App. | 1903
Opinion of ti-ie court by
Affirming.
This action was instituted by C. B. Lowery, appellant, to test the validity of Ordinance No. 1372, passed by the city council of Lexington, Ky. The ordinance was to authorize and provide for the construction of a system oí sewers in the city of Lexington, and to order an election to determine the question of issuing $150,000 of bonds of the city for that purpose. The city demurred to the petition of appellant, the court sustained the demurrer, and adjudged that the ordinance was invalid and void. To test that question is the object of this appeal.
The first section of the ordinance authorizes sewers to-be constructed in accordance with plans drawn by Col. George E. Waring, with such changes, alterations, extensions-, and additions as might be determined upon in the mode and manner hereinafter set out and provided. The second section provided the manner of issuing the- bonds,, and the terms thereof. The other sections, down to the seventh, provided the manner of holding the election and determining the result thereof. The seventh section is as follows: “Ge-oirge S. Shanklin, L. G. Cox, R. P. Stoll, J. R. Barr, Judge Matt Walton and Gus Straus are hereby employed by the city of Lexington to superintend and supervise the construction of the sanitary sewer system of said city as provided for in this ordinance. And the general council is hereby authorized to pay to said named persons as wages a sum not to exceed $300.00 each.” Section 8 authorizes the employment of a capable, competent sani
Appellee’s counsel contends that the ordinance is void because it creates new offices and officers, and names the persons to fill them, which he claims is in violation of the Constitution and the city charter. Appellant’s counsel, on the other hand, contend that the ordinance does not create any office or officer, and that the persons named in the ordinance were not appointed as officers, but only as agents of the city to superintend the construction of the sewerage system provided for therein. We are of the opinion that the ordinance is void in either event. If they are to be regarded as officers, then it is void because the city had no power, under the Constitution and charter, to create any office or officers other than those provided for therein. See the case of Lowery v. City of Lexington, 113 Ky., 763, 24 R., 516, 68 S. W., 1109. If it was intended by the ordinance to make them simply agents, then it is void because they supplant the city council in the matters provided for in the ordinance. The General Assembly, by section 3058 of the Kentucky Statutes of 1899, delegated to the city council of the city of Lexington the power and authority, by ordinance, to establish, erect, and maintain sewers; and it had no power by ordinance to delegate this power to others, and relieve itself of responsibility. We do not mean to be understood to say that the city council should perform the manual labor, or be present in a body or individually to superintend the construction of the sewer; but it should retain the power and control, and remain, supreme in the matter of the approval of the plans and specifications, ma
We are clearly of opinion that the ordinance is void. Wherefore the judgment of the lower court is affirmed.