City of Sebree v. Powell

• Decision Date: 21 October 1927
• Citation: 221 Ky. 478
• Parties: City of Sebree v. Powell.
• Court: United States State Supreme Court — District of Kentucky

Page 478

221 Ky. 478

City of Sebree v. Powell.

Court of Appeals of Kentucky.

Decided October 21, 1927.

1. Municipal Corporations. — To ascertain procedure to acquire lien against abutting property for oiling streets, under Ky. Stat., section 3647, such section must be read in connection with statutes providing procedure for acquiring lien on abutting property for street improvements, such as Ky. Stats., sections 3643-1, 3643-2, 3647.

2. Municipal Corporations. — No lien was created on abutting property for oiling streets, under Ky. Stats., section 3647, where due notice was not given in that no advertisement for bids was made; "due notice" in such cases being proper advertisement, and "proper advertisement" being one published and giving description of work to be let or materials to be purchased and time and place for receiving bids.

3. Municipal Corporations. — Requirements of Ky. Stats., section 3647, providing that contract for the improvement of streets, cost of which is to be assessed against abutting property, shall be let to lowest and best bidder after proper advertisement, are mandatory, and valid contract made on competitive bidding is judicial prerequisite to authorize council to charge property owners with improvement.

4. Municipal Corporations. — Failure of property owner to institute any proceedings to prevent oiling of streets held not to estop him from refusing to pay proportionate part of oil tax, where proceedings authorizing work were invalid for jurisdictional defect in that proper advertisement for bids was not made.

Appeal from Webster Circuit Court.

RAYBURN & WITHERS for appellant.

C.W. BENNETT for appellee.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

Sebree is a city of the fifth class, and its council adopted a resolution providing for the improvement of certain designated streets by spreading oil thereon, the cost of the improvement to be assessed against the owners of the abutting property on the streets designated. The resolution was published as required by section 274le2, Kentucky Statutes. The sum apportioned to be paid by appellee as his proportionate part of the oil tax was $111.09, which he refused to pay, and the city instituted this action to enforce a lien upon his property.

The petition as amended avers that after the passage and publication of the resolution providing for the oiling of the streets, letters were written to various companies having oil for sale, and the oil used was purchased from the company making the lowest price, and the contract for spreading the oil was made with the person offering to do the work at the lowest price. No advertisement for bids was made. A second amended petition was filed, in the second paragraph of which it was averred that the defendant was present in the city of Sebree at the time of the passage and publication of the resolution providing for the oiling of the street in front of his property, and at the time the oil was being spread, and that he never objected to any of the work nor filed any proceeding seeking to prevent the work from being done; that he knew the city was having the work done and intended to charge the cost to the abutting property owners; that the cost of the oil and of spreading it was reasonable, and the defendant was not prejudiced by the failure of the city to advertise the letting of the contract. These facts were relied upon as an estoppel.

The lower court sustained demurrers to the petition as first amended and to paragraph 2 of the second amended petition. The city declined to plead further, and its petition was dismissed, and it has appealed.

Section 3647 of the Kentucky Statutes provides that when the expenditure required for any street work or for any supplies or materials for the same exceeds $100, "the same shall be done by contract, and shall be let to the lowest responsible bidder, after due notice, under such regulations as may be...