Board of Councilmen of City of Frankfort v. Jillson

• Decision Date: 12 June 1928
• Citation: Board of Councilmen of City of Frankfort v. Jillson, 225 Ky. 61, 7 S.W.2d 859 (Ky. Ct. App. 1928)
• Parties: BOARD OF COUNCILMEN OF CITY OF FRANKFORT et al. v. JILLSON et al.
• Court: Kentucky Court of Appeals

7 S.W.2d 859

225 Ky. 61

BOARD OF COUNCILMEN OF CITY OF FRANKFORT et al. v. JILLSON et al.

Court of Appeals of Kentucky

June 12, 1928

Appeal from Circuit Court, Franklin County.

Action by W. R. Jillson and others against the Board of Councilmen of the City of Frankfort and others. From the judgment plaintiffs and defendants appeal. Affirmed in part and reversed in part on direct appeal, and affirmed on cross-appeal.

Frank M. Dailey and Leslie W. Morris, both of Frankfort, for appellants.

W. C Marshall, of Frankfort, for appellees.

SANDIDGE C.

The city of Frankfort is a municipality of the third class. Steele street, in the city, between Third and Todd streets has been improved under ordinances enacted by the city council providing that the cost be borne by the abutting property owners. Street intersections are excepted and are to be paid for by the city. This action was instituted by appellees, suing on behalf of themselves and all of the other property owners involved, to enjoin the enforcement of the liens against their property under the apportionment ordinance approved by the common council, and to purge the apportionment of certain alleged illegal items. Upon the hearing below the chancellor adjudged that engineers' fees to the amount of $1,245.44, cost of sidewalk concrete, $636.05, and the cost of certain catch-basins, $420, were improperly included in the cost of the street for which the property owners were liable, and, eliminating those items, the apportionment ordinance enacted by the city was approved in all other particulars. By the judgment entered the cost of the improvement, with the corrections indicated, was reapportioned, the amount owing by each property owner being adjudged. The judgment further provided that the property owners might exercise the privilege given them by section 3458, Kentucky Statutes, to pay for the improvement in cash without interest or to pay in ten annual installments, adjudging them the right to exercise that option within thirty days after the common council of the city of Frankfort should meet and re-enact the apportionment ordinance in accordance with the terms of the judgment. The city and the contractor who performed the work have appealed, and the property owners have prosecuted a cross-appeal.

The item of $636.05, cost of sidewalk concrete, eliminated by the judgment from the total cost of the street as approved by the city, is conceded by all parties to have been properly eliminated. The appeal by the city and the contractor questions, first, the correctness of the judgment of the chancellor as to the item of $1,245.44, engineers' fees. For appellants, it is insisted that this court's opinions in Tennessee Paving Brick Co. v. Barker, 59 S.W. 755, 22 Ky. Law Rep. 1069; City of Harlan v. Coombs Land Co., 199 Ky. 87, 250 S.W. 501; Shaw v. City of Mayfield, 204 Ky. 618, 265 S.W. 13; City of Springfield v. Haydon, 216 Ky. 483, 288 S.W. 337; Wallace v. City of Louisa, 217 Ky. 419, 273 S.W. 720; and Hoerth v. City of Sturgis, 221 Ky. 835, 299 S.W. 1074-are decisive of the question and demonstrate that the chancellor's judgment excluding the engineers' fees from the cost of the street improvement was erroneous. Tennessee Paving Brick Co., etc., v. Barker, etc., as it relates to this question, merely decided that, since the Statutes relating to cities of the fourth class did not require but merely authorized the city council to elect a city engineer, the fact that the city council did not elect a city engineer but merely employed an engineer for a particular work did not render invalid the ordinances directing the work to be done at the cost of the property owners. It does not appear from that opinion how the engineers' fees were paid, whether included in the cost of the street improvement or paid by the city from its general funds. The other opinions mentioned were written with reference to controversies arising in municipalities of the fourth and fifth classes. As written in the Barker Case, the Statutes relating to fourth-class cities provide that the city council may, but not that it shall, elect a city engineer. The Statutes relating to cities of the fifth class make no mention of a city engineer at all. In view of these facts, it has been written in the opinions above referred to that an engineer may be employed for the particular work involved and the fees for his services may be charged to the property owners as a part of the cost of the improvement.

Section 3447, Kentucky Statutes, relating to municipalities of the third class, provides:

"The board of public works shall employ a competent engineer, who shall be styled the city engineer. He shall keep an office in said city, and see that all public works and improvements are executed according to contract, plans and specifications, and certify to same."

Section 3426, Kentucky Statutes, relating to municipalities of the third class, provides that the common council of such municipalities may establish a board of public works, and the concluding sentence of that section reads:

"When no board of public works has been established, the duties herein imposed shall be performed by the common council, and such other employees and agents as said common council may elect or designate."

By ordinance enacted March 17, 1897, which appears never to have been repealed or modified, the municipality here involved provided for the election, term of office, salary, and duties of the office of city engineer, and up until within a short while before the improvement of Steele street was undertaken, at such times as public work required, the city council elected a city engineer. In view of the provisions of our Statutes relative to municipalities of the third class, this court concludes that the chancellor properly adjudged that a municipality of that class may not, by failing to elect a city engineer, impose upon the property owners as part of the cost of street construction the fees of engineers merely employed for particular work.

In view of section 3447, providing that the city shall employ a competent engineer, the Legislature seems clearly to have given us to understand that the costs of such work shall be borne by the city. The statute does not necessarily mean that the city must have at all times a city engineer, regardless of whether any public work is in progress requiring the services of one skilled and trained along engineering lines; but rather, that, when public work being prosecuted by the city requires the service of an engineer, the city must employ and pay him. For this reason the judgment of the chancellor eliminating the item of $1,245.44 was proper.

The effect of the judgment entered by the chancellor was that the common council must re-enact the apportionment ordinance apportioning and levying and assessing the cost of the street improvement against the property owners in accordance with the...