C. & O.R. Co. v. City of Olive Hill
| Decision Date | 15 October 1929 |
| Citation | 231 Ky. 65 |
| Parties | Chesapeake & Ohio Railway Company v. City of Olive Hill. |
| Court | United States State Supreme Court — District of Kentucky |
3. Municipal Corporations. — In suit to enforce lien for paving assessment against abutting property of railroad company, personal judgment against railroad is not proper.
4. Municipal Corporations. — Abutting property owners cannot stand idly by while contractors construct streets, and, after completion of the work and acceptance by city, come into court of equity and claim there were irregularities in proceedings, such as to enable property owners to escape payment of assessment, under Ky. Stats., sec. 3574.
5. Municipal Corporations. — If taxpayers think that there has been invasion of their legal rights by city council or other authority in proceedings for construction of streets, proper remedy by taxpayers is to proceed by injunction before work is done, under Ky. Stats., sec. 3574, providing that no irregularity in proceedings shall exempt property from lien after work has been done and accepted.
6. Municipal Corporations. — Assessment by city council for street paving held not invalid, because made less against narrow street than against wide street, since cost of wide street is greater.
7. Municipal Corporations. — Ordinance providing for construction of streets, if not permitting discrimination in assessment against wide street, as compared to narrow street, could be corrected by city council in apportioning assessment.
8. Municipal Corporations. — Under ordinance providing for improving of streets by paving from curb to curb, inclusive, word "inclusive" referred to curbs, and included curbs in improvement.
9. Municipal Corporations. — If city council, in providing for street improvements, deemed that it was necessary that curbing should be only on part of street, abutting owner could not complain.
10. Municipal Corporations. — City can speak only through its records.
11. Municipal Corporations. — Minutes of city council, reciting that it was regularly moved and seconded that resolution for street improvement be read in open council, and further reciting vote that was taken, though irregular, if strictly construed, as showing vote on whether resolution should be read, was not such irregularity as would authorize court to say that resolution was not voted on or adopted at meeting, under Ky. Stats., sec. 3570, providing that such resolution must be adopted.
12. Municipal Corporations. — Where record showed that on March 10th street paving ordinance was read in open council for first time and laid over until March 22d, and that on March 22d council met and adjourned until next day, when elaborate paving ordinance was enacted, and there was nothing to indicate that ordinance enacted was not same as ordinance read on March 10th, abutting property owner, after completion of improvement, could not attack validity of improvement ordinance on ground that record did not show two readings, with 10 days intervening between readings, under Ky. Stats., sec. 3574.
13. Municipal Corporations. — Under Ky. Stats., sec. 3571, conferring on city council power to select kind of materials to be used for street paving, ordinance providing that paving shall be with reinforced concrete, bituminous macadam, Kentucky rock asphalt, brick, or sheet asphalt, authorized bids on different kinds of material to be selected by city council, and sufficiently designated material to be used in improving streets.
14. Municipal Corporations. — Where resolution was passed by city council showing lowest bidder for street improvement, and on motion contract was awarded to bidder after vote, and subsequently ordinance was adopted accepting bid, bids were properly accepted, and abutting owner could not defeat assessment after completion of work because of failure to accept bid by ordinance, under Ky. Stats., sec. 3574.
Appeal from Carter Circuit Court.
HUNT & BUSH and JOHN M. THEOBALD for appellant.
DYSARD & MILLER, S.S. WILLIS and R.T. KENNARD for appellee.
Reversing.
The city of Olive Hill improved Railroad street, and the Chesapeake & Ohio Railway Company owned property abutting that street. The railroad company did not pay the assessment, and suit was instituted by the city, seeking to enforce the lien given by law against the abutting property of the railroad company. The case was prepared for trial, and, at the conclusion, the chancellor entered a personal judgment against the railroad company for $2,994.13, with penalties, cost, and interest. There was no judgment enforcing the lien and no order of sale. No personal judgment was authorized. It was not prayed for. The court was without authority to enter such a judgment, and because of this error the case must be reversed. Ormsby v. City of London, 220 Ky. 148, 294 S.W. 1029; City of Mt. Sterling v. Bishop, 228 Ky. 529, 15 S.W. (2d) 416; Moss et al. v. Andrews Asphalt Paving Co., 229 Ky. 419, 17 S.W. (2d) 255.
But it is contended by counsel for appellee that the entry of a personal judgment in this case was a clerical misprision, which should have been corrected by motion in the lower court. We do not think so. Newman's Pleadand Practice (2d Ed.) sec. 681; Napier v. Trace Fork Mining Co., 193 Ky. 291, 235 S.W. 766; Combs' Guardian v. Deaton, 199 Ky. 477, 251 S.W. 638; Gayheart v. Childers, 137 Ky. 472, 125 S.W. 1085.
But it is also contended by counsel for appellee that a personal judgment is not improper in a case seeking to enforce an apportionment for street improvements against the abutting property of a railroad company. They cite respectable foreign authority for their contention, but the court is unwilling on the record as here presented to follow the authorities cited. It would be an amendment to the statute without legislative authority. A state of case might be presented where a personal judgment would be authorized, but we find no reason to depart from the ordinary method of enforcing such assessments in this case.
Appellant attacks the proceedings of the board of council as being irregular, and on the ground that some of them were so fundamentally wrong as to render them void. Section 3574, Ky. Stats., contains this provision: "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."
This is a wise provision of the law. Abutting property owners should not be allowed to stand idly by while contractors are spending money in the construction of streets, and after the work has been completed and accepted by the city come into a court of equity and make the contention that there were irregularities in the proceedings, such as to enable the property owners to escape the payment of the assessment. Justice and equity are on the side of the city and the contractor, and there must be some insuperable legal obstacle in the way, before a court should grant relief to a taxpayer under such circumstances. It is right that it should be so. The courts are open to taxpayers before the work is performed, and if they think that there has been an invasion of their legal rights by a city council, or those in authority, the proper remedy is to proceed by injunction before the work is done. The law just quoted declares that no irregularity in the proceedings shall exempt property from the lien given by the statute after the work has been done and accepted, but it confers upon the city council and the courts authority to correct errors and to do justice.
The first complaint made by counsel for appellant is that in apportioning the assessment the city council did not apportion to every front foot on the streets the same amount. It is true that the city council made the assessment less against a narrow street than against a wide street. The...
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