City of Henderson v. Lieber's Exor.

• Decision Date: 23 March 1917
• Parties: City of Henderson v. Lieber's Executor, et al.
• Court: Kentucky Court of Appeals

Page 15

175 Ky. 15

City of Henderson v. Lieber's Executor, et al.

Court of Appeals of Kentucky.

Decided March 23, 1917.

Appeal from Henderson Circuit Court.

B. S. MORRIS for appellant.

VANCE & HEILBRONNER for appellees.

OPINION OF THE COURT BY JUDGE SAMPSON — Affirming.

In February, 1914, Mrs. Babette Lieber, of Henderson, Kentucky, died intestate, and M. Lieber, her son, qualified as executor of her estate. In December following, the executor instituted this action, for the settlement of the estate of Mrs. Babette Lieber, making the city of Henderson, among others, party defendant, and calling upon it to make answer. Thereupon, the city of Henderson filed its answer, and after alleging its right to sue, avers that in 1912, the common council of the said city passed and adopted an ordinance, requiring certain street improvements, the cost to be taxed against the abutting property owners, and declared a lien upon the property, and in case the abutting property owners failed to pay for the improvements, the city would issue bonds pledging the faith and credit of the city as well as the lien upon the property acquired by reason of the improvements, and thus fund the debt. This ordinance was passed in conformity to section 3459a, Kentucky Statutes, entitled: "Improvements of Public Ways — Ten Year Plan," and which statute provides ways and means by which the city may improve its thoroughfares and tax the expense thereof against the abutting property. The city in this case claimed $746.03, with interest, due it from the Lieber estate.

The executor in reply admits the improvements made by the city, but denies responsibility of the estate of Mrs. Babette Lieber, for the cost thereof, because the statute and ordinance under which the improvements were made, were both unconstitutional and void and had been so declared by this court, prior to the commencement of this action, in the case of Hickman, et al. v. Kimbley, 161 Ky. 652. The defendant city responding to this pleading admitted that the statute had been declared unconstitutional, but alleged that Mrs. Lieber, the owner of the property against which the improvements were made and sought to be charged, was living at the time of the passage of the ordinance and the making of the improvements of the street, and that she stood silently by, and allowed the city to make the improvements, with her knowledge, without objection or protest, and that by her conduct her estate is estopped to deny its liability. To this plea a demurrer was interposed and sustained, and of this appellant, city, complains.

So, the question to be determined is: Can a city under a void statute and ordinance, collect the cost of a street improvement off the property owner where the property owner stood silently by, and with knowledge of the intended improvements, did not object or protest against the construction or notify the city that she would not be liable?

An unconstitutional statute is void ab inito. Any statute or ordinance passed in controvention of the constitution is without force or effect, and any action had or taken under such ordinance or statute is a nullity.

In 8 Cyc. 805, it is declared: "As a general rule all acts done under an unconstitutional law are void and of no effect."

An unconstitutional law has no inherent force, and confers no authority upon those claiming to act under it. Wooly v. Dodge, 6 McLean (U. S.) 142; Louisiana State Lottery Co. v. Fitzpatrick, 3 Woods (U. S.) 222.

This precise...