Baker v. Kelly

• Decision Date: 23 October 1928
• Citation: 10 S.W.2d 467,226 Ky. 1
• Parties: BAKER et al. v. KELLY. McCORMACK v. SAME.
• Court: Kentucky Court of Appeals

10 S.W.2d 467

226 Ky. 1

BAKER et al. v. KELLY.

McCORMACK v. SAME.

Court of Appeals of Kentucky

October 23, 1928

Appeal from Circuit Court, Perry County.

Separate actions by J. S. Kelly against W. S. Baker and others and by plaintiff named against Kyle McCormack. Judgments for plaintiff, and defendants in each case appeal. Reversed and remanded, with directions.

M. K Eblen, of Hazard, for appellants.

Saufley & Ward, of Hazard, for appellee.

McCANDLESS J.

In separate actions in the Perry circuit court, appellee recovered several judgments against the appellants subjecting their property abutting on Oakhurst street, in the city of Hazard, to the payment of apportionment warrants which had been issued by the city council in payment of construction costs in the improvement of that street. While not consolidated, the cases were tried and heard together in the lower court upon the same evidence, and that practice is followed in this court. Appellee's proof conduces to show that the resolution for this improvement was duly passed by the city council on June 7, 1926, and advertised in the Hazard Herald in its issue of June 18, 1926. The ordinance for the improvement in question was introduced and had its first reading July 7, 1926, more than 30 days subsequent to the resolution, thus conforming to the provisions of section 3570, Kentucky Statutes. It had a subsequent reading and was passed July 19, 1926, thus conforming with section 3563 Kentucky Statutes. It was advertised in the Hazard Herald in its issues of June 18th and 25th, and July 2d, 9th, 16th, and 23d. In conformity with the ordinance the mayor of the city advertised for bids to be submitted August 2, 1926. Such advertisement appeared in the same paper in its issues of July 23 and 30, 1926. On August 2, 1926, the council met and received the bids of J. S. Kelly, and, no one else submitting bids, he was awarded the contract. The improvements were made in accordance with the contract, and no question is raised as to the regularity of the proceedings subsequent to such letting.

The appellants admit the proper passage and advertisement of the resolution and the regularity of all the proceedings subsequent to the execution of the contract, but insist that the meeting of July 7th was unauthorized; that there was no meeting on July 19th; that the advertisement for bids was illegal and the contract void, in that it was executed by the mayor pro tem. at a time when it had no authority to act.

1. As to the first proposition it appears that regular meetings of the council are held on the first Monday in each month; that the first Monday in July, 1926, was the 5th day of that month; consequently a meeting held on July 7th was not a regular meeting. However, we do not think this material in this case. The exhibit filed in evidence purporting to be a copy of that proceeding shows the presence of all the members of the council at that meeting. There is nothing in the charter of cities of the fourth class prohibiting the council from transacting business of the character at a special session, and, if all the members were present appellants' contention cannot prevail. City of Mt. Sterling v. King, 126 Ky. 526, 104 S.W. 322. The competency of the exhibit will be considered later.

2. As evidencing there was no meeting held on the 19th of July appellants testified that on the 2d of August they examined the minutes of the board as kept by the clerk. And at that time the only meeting appearing upon the minutes was that of July 7th. They then asked several members of the board as to whether a meeting had been held subsequent to July 7th, all of whom stated there had not been any such meeting. They also undertook to show that the August vouchers issued to members of the council in payment of their July services did not embrace such meeting. On the other hand, the city clerk testifies that a meeting was held on July...