City of Catlettsburg v. Self

• Decision Date: 27 May 1903
• Citation: 74 S.W. 1064,115 Ky. 669
• Parties: CITY OF CATLETTSBURG et al. v. SELF et al.
• Court: Kentucky Court of Appeals

74 S.W. 1064

115 Ky. 669

CITY OF CATLETTSBURG et al. v. SELF et al.

Court of Appeals of Kentucky.

May 27, 1903

Appeal from Circuit Court, Boyd County.

"To be officially reported."

Action by John Self and others against the city of Catlettsburg and others. From a judgment for plaintiffs, defendants appeal. Reversed.

Thos R. Brown, for appellants.

P. K Malin and W. H. Wadsworth, for appellees.

O'REAR J.

Appellant city belongs to the fourth class. Thirty years or more ago certain of its streets had been graded and macadamized, at whose cost is not shown. The improvement was quite deficient. The city council in 1900 determined to improve these ways by building them of fire-clay street-paving brick, and to make the cost of the construction a charge against the abutting property. The proceedings were taken under section 3572, Ky St., which allows: "The original construction of any street, road, alley, market space, lane, public square or grounds, wharves, levees, or avenue, may also be made at the exclusive cost of the owners of the lots and parts of lots or land fronting or abutting or bordering upon the grounds so improved, to be equally apportioned by the board of council according to the number of front feet owned by them respectively." The ordinance requiring the improvement to be made under the section quoted was regularly adopted. The contract was let to the lowest bidder, and as required by statute. The contract price of the whole work undertaken was about $25,000. The work has been completed as required by the specifications of the contract, and has been accepted by the city authorities. Under section 3574, Ky. St., the city issued bonds for the payment of the work. That section required the mayor of the city, when the work was undertaken under section 3572, to within 30 days after the signing of the contract issue the bonds of the city in such amount as the council might order, not exceeding the contract price of the work and the expenses of issuing the bonds, which bonds were made redeemable at any time within 10 years. Section 3575, Ky. St., provides an elaborate plan for the payment of the bonds and interest, the substance of which is: The funds arising from a sale of the bonds shall be kept separately and exclusively, and be known as the "Street Improvement Fund," and be applied only to the purpose for which the bonds were by ordinance directed to be issued. As soon as the improvement should be completed, it should, with its accruing interest, be prorated against the abutting property by the front foot. The apportionment so made thereby became an assessment upon the abutting properties, collectible therefrom as other taxes, and secured by a lien on the property. It was collectible in annual installments, so that when collected it would liquidate the bonds. The bonds as provided for in the section last referred to were issued to the amount of $25,000, "payable semi-annually from date of same, and payable and redeemable not on the faith and credit of said city, but out of and secured by a lien on the assessments to be made and equally apportioned against said lots and parts of lots or lands," etc. Thereafter the city undertook to refund those bonds by substituting its unconditional obligation to pay the holders that much money in any event, pledging all the revenues and property of the city therefor.

This suit was brought by appellees, on their own behalf, as well as on behalf of all others similarly situated, who it was alleged were too numerous to be joined, but whose interest was one in common with appellees, obtaining an injunction against the collection of the assessments made by the city against the abutting property to pay the bonds in question. Appellees are owners of some of the property affected by the assessment. Two grounds were relied on to defeat the city's right to require appellees' property, by any sort of tax, to pay for this improvement. First, it is claimed that the work was not original construction, but was reconstruction, which is by statute (section 3565) to be borne by the city, and not by the abutting property; and, second, that, viewing it as a debt of the city, it was in excess of the income and revenues provided for that year, and, not having been authorized by a two-thirds vote of the taxpayers at an election held for that purpose, was therefore contracted in violation of sections 157 and 158 of the Constitution, and was by the terms of that instrument forever void. The learned circuit court sustained appellees' attack upon the assessment, but upon which of the two grounds asserted we are not advised.

Paving the streets with fire-clay paving brick was a radical improvement. For aught the record shows, the old macadamized roadway was an incomplete and insufficient provision for accommodating the public travel. It was probably more in the nature of a temporary makeshift till such time as the growth affairs, and importance of the municipality would justify its making a more permanent and expensive roadway. In McHenry v. Selvage, 99 Ky. 232, 35 S.W. 645, a macadamized road had been taken into the city by an extension of its boundary. Upon the city's...