Cohen v. City of Henderson

• Decision Date: 20 December 1918
• Citation: 182 Ky. 658,207 S.W. 4
• Parties: COHEN v. CITY OF HENDERSON.
• Court: Kentucky Court of Appeals

207 S.W. 4

182 Ky. 658

COHEN v. CITY OF HENDERSON.

Court of Appeals of Kentucky.

December 20, 1918

Appeal from Circuit Court, Henderson County.

Action by Joseph Cohen against the City of Henderson. Judgment of dismissal, and plaintiff appeals. Affirmed.

Thomas J., dissenting.

Vance &amp Heilbronner, of Henderson, for appellant.

B. S Morris, of Henderson, for appellee.

HURT J.

The city of Henderson is a city of the third class. In 1912 the General Assembly attempted to amend section 3459, Ky. Stat., which is a part of the charter of cities of the third class. The attempted amendment is now section 3459a, Ky. Stats. It provided a very comprehensive plan for the construction and reconstruction of the streets of the cities of that class, upon what is termed the "ten-year" plan, at the cost of the owners of the property abutting upon the streets, and provided for issuing the bonds of the municipality, for the costs of the improvement, in anticipation of the collection of the assessments to be made against the property owners. It is gathered from the petition that on the 10th day of July, 1912, the common council of the city of Henderson, adopted an ordinance, which provided for the construction of concrete gutters, curbs, and sidewalks, upon certain of the streets of the city, in accordance with the plan provided by section 3459a, supra, and directed the mayor to enter into a contract with some one to make the improvements, as provided in the ordinance. In pursuance to the ordinance, a contract was entered into between the city, acting by the mayor, and the Stratman Concrete Company, for doing the work. The contract was in accordance with the ordinance, which was referred to and made a part of the contract. The ordinance provided that the improvements should be made as provided by section 3459a, supra. The work was done in accordance with the ordinance and contract, and all the requirements of section 3459a were complied with, which were required by that act to make the costs of the improvements a lien upon the abutting property. In accordance with the terms of that statute, the cost of the work was apportioned between the various abutting property owners, who having failed to pay the costs within 30 days the city executed its bonds in payment of the work, as provided by section 3459a, and delivered them to the contractor. The bonds were made payable to bearer, and contained a recitation that they were issued in pursuance of the above-mentioned ordinance, and by virtue of the power vested in the city by the statute, section 3459a, and to secure their payment the faith and credit of the city was pledged, as well as a lien on the abutting property. The appellant became the owner of several of the bonds by purchase from the contractor or his vendee.

This court, in the case of Hickman v. Kimbley, 161 Ky. 652, 171 S.W. 176, held that section 3459a, supra, was enacted contrary to the requirements of section 51 of the Constitution, and was therefore void, and it further held that an ordinance enacted for the construction of a street under that statute was void, because the provisions for the payment under that act could not be disregarded, and the provisions for the construction sustained, since provisions for the payments are such a material part of the ordinance that it is impossible to separate them from the other provisions of the ordinance, and assume that the improvements would have been ordered, without the provisions for payment. The opinion in that case was followed and approved in City of Henderson v. Lieber's Ex'r, 175 Ky. 15, 192 S.W. 830, wherein it was held that an ordinance similar to the one mentioned above was void, because the common council was without authority to enact such an ordinance, and that the costs of improvements made under an ordinance, under the provisions of section 3459a, did not create any lien upon the property of the abutting property holders, and that it could not be subjected for an assessment by virtue of an ordinance under that act.

Cohen, alleging in his petition substantially as stated above, sued the city of Henderson, and sought to recover of it the amount of his bonds, with interest. The city interposed a general demurrer to the petition as amended, which was sustained, and the action dismissed, and from the judgment, Cohen has appealed.

(a) The petition avers that the ordinance under which the work was done and the bonds issued is void, and that the bonds cannot be collected from the abutting property owners, nor can the lien attempted to be created be enforced against the property; but appellant insists that, inasmuch as the city made a contract for the doing of the work at the costs of the abutting property, and to pay for it out of a fund to be raised by assessments upon the property, and having accepted the work as having been done according to the contract, and the property owners having refused to pay the assessments, and the city being unable to enforce the payments of the assessments, that the city is primarily liable, and can and should be required to pay the bonds. In support of this contention the cases of City of Louisville v. Hyatt, 5 B. Mon. 199, City of Louisville v. Leatherman, 99 Ky. 213, 35 S.W. 625, 18 Ky. Law Rep. 124, City of Louisville v. Bitzer, 115 Ky. 359, 73 S.W. 1115, 24 Ky. Law Rep. 2263, and Hancock Co. v. City of Mt. Sterling, 170 Ky. 207, 185 S.W. 856, are cited, but neither of these cases seem to be in point, as will hereafter be shown.

As a general rule, a municipal corporation, subject to constitutional restrictions, may do anything in the way of street improvements which its charter or other statute authorizes it to do; but, in contracting for such work, it is limited by the terms of the statute under which it proceeds, and a contract to perform such work must conform to the statute which authorizes the work to be done.

(1) Where statutory provisions prohibit a municipal corporation from constructing streets at the cost of the municipality, or impose conditions upon its power to do so, the municipality cannot be made liable in the first instance for street improvements, nor in the second instance unless the conditions are complied with.

(2) Where a statutory provision applies to a municipal corporation, to the effect that the corporation cannot be made liable for street improvements, unless it shall have the right to enforce the payment of the costs against the property which receives the benefits of the improvements, that provision is upheld; but it is held that, where such a statutory provision prevails, it applies only to cases where the corporation has the right and authority to make the improvement at the costs of the abutting property, and does not apply to cases where the corporation has the right to contract for the improvements, and is not prohibited by statute from paying for them, but on account of the nature or ownership of the property it cannot be subjected to the costs, and in the latter state of case the corporation will be liable to the contractor, although the contract provided that the improvements should be made at the costs of the abutting property.

(3) In the absence of statutory provisions prohibiting a municipality from improving the streets at its costs, the general rule is that, where a city or town has the power and authority to contract for a street improvement, but has no authority to make the costs of the improvement a charge upon the abutting property, the corporation is primarily liable to the contractor.

(4) Another rule is that, where a municipal corporation has authority to contract for street improvements, and is not prohibited by statute from paying for them, and makes a contract to have the work done at the cost of the abutting property, and has authority so to do, but fails and neglects to adopt the proper measures, or to take the proper steps to make the abutting property liable to an assessment for the costs, the corporation is liable to the contractor, although the contract provided that the improvements should be made at the costs of the abutting property. Many of the adjudications of this court in regard to street improvements, and the liability of the cities and towns in their corporate capacity for the costs of the improvements, have been controlled by charter or statutory provisions applying to such corporations at the time of the adjudications, and cause apparent inconsistencies in the adjudications, when not read in connection with the statutory or charter provisions which influenced the decisions; but a reference to the following cases will show that the general principles and rules above mentioned have been adhered to when the facts of the particular case have brought it within one of the principles above stated: Guthrie v. City of Louisville, 6 B Mon. 575: Craycraft v. Selvage, 10 Bush, 708; Murphy v. City of Louisville, 9 Bush, 189; Hydes v. Joyes, 4 Bush, 465, 96 Am.Dec. 311; City of Covington v. Dressman, 6 Bush, 210; City of...