Curtis v. Louisville and Jefferson County Metropolitan Sewer Dist.

• Decision Date: 14 March 1958
• Citation: 311 S.W.2d 378
• Parties: Norman CURTIS and Frank Hempel and Helen Hempel, Appellants and Appellees, v. LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT, Jefferson County Fiscal Court, composed of B. C. Van Arsdale, County Judge and March Beauchamp, Robert A. Fihe and Mortimer Viser, County Commissioner and City of Louisville, Appellants and Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 378

311 S.W.2d 378

Norman CURTIS and Frank Hempel and Helen Hempel, Appellants and Appellees, v. LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT, Jefferson County Fiscal Court, composed of B. C. Van

Arsdale, County Judge and March Beauchamp, Robert A. Fihe

and Mortimer Viser, County Commissioner and City of

Louisville, Appellants and Appellees.

Court of Appeals of Kentucky.

March 14, 1958.

Jack W. Womack, Louisville, for appellants and appellees Norman Curtis and Frank Hempel and Helen Hempel.

Blakey Helm, James G. Becker, Louisville, for appellees and appellants Louisville Metropolitan Sewer Dist.

Charles W. Dobbins, Louisville, for Jefferson County Fiscal Court.

William E. Berry, Louisville, for City of Louisville.

CULLEN, Commissioner.

Through the procedure of submission of an agreed case, under KRS 418.020, various questions were presented to the circuit court concerning the validity of certain procedures taken or proposed to be taken under KRS 76.240 to 76.280 to accomplish improvement of surface drainage in a particular area of Louisville and Jefferson County. The parties are the Louisville and Jefferson County Metropolitan Sewer District, the City of Louisville, the Jefferson County Fiscal Court, two property owners within the City of Louisville, and one property owner in Jefferson County outside the city. The circuit court entered judgment making a declaration on each of the questions presented. Each of the parties is satisfied with some parts of the judgment and dissatisfied with other parts, and all of the parties have appealed.

The statute in question, KRS 76.240 to 76.280, was enacted in 1956. It provides that the governing board of the sewer district may adopt a resolution proposing a surface drainage improvement in a designated area, KRS 76.240; the resolution must in certain instances be approved by the fiscal court of the county and by the legislative body of a city of the first class, KRS 76.245; a public hearing must be held of which the property owners are given notice and at which they may present objections, KRS 76.255; after the necessary approvals have been obtained and all objections have been determined, the land in the improvement area is to be divided into four classes, according to the degree of benefit, and assessments for the cost of the improvement are to be levied on the basis of the classification, KRS 76.260.

Proceedings were commenced under this statute by the Metropolitan Sewer District. A resolution was adopted, calling for surface drainage improvements in a large area partly within and partly without the City of Louisville. The resolution was submitted for approval to the Board of Aldermen of Louisville and to the Fiscal Court of Jefferson County. The fiscal court approved the resolution, but the board of aldermen refused to take any action, on the ground that none of the actual construction work would be done within the city and therefore approval by the board of aldermen was not required. Notice to the property owners, of a public hearing, was prepared by the board of the sewer district, but before the notice was published or posted this action was brought, to determine the validity of the steps theretofore taken.

The first question for our consideration is whether approval of the resolution by the Board of Aldermen of Louisville is required. The proposed improvement area includes some 2,000 acres within the city, which would be benefited by the improvement and which would be assessed for cost of the improvement. However, none of the actual construction work will be done within the city. The statute, KRS 76.245, states that approval of the legislative body of the city is required if the proposed improvement 'is to be constructed in whole or in part within the limits' of the city. The circuit court placed a literal interpretation on the word 'constructed,' and held that approval by the Board of Aldermen of Louisville was not required for this improvement project. It seems to us that the important consideration, as concerns approval, is the operative effect of the improvement, rather than the mere location of the physical facilities. We cannot believe that the legislature intended that the city legislative body should have a voice only as to the construction of physical facilities, and not as to the practicability and effectiveness of the project as a drainage system for the people of the city. Subsection (3) of KRS 76.245 requires approval of a modification of the original resolution if the 'improvement includes territory' in the city, and KRS 76.250 states that 'construction work' includes planning and engineering, and supervision costs. These provisions indicate that 'constructed' as used in the first part of KRS 76.245 was not intended to refer only to actual, physical construction work. It is our opinion that the judgment is erroneous on this point.

The second question is whether the statute requiring approval of the project by the fiscal court and by the legislative body of the city of the first class, KRS 76.245, is unconstitutional on the ground that it results in subordination of the authority of one distinct municipal corporation (the district) to that of two others (the county and the city), or that it has the effect of permitting city and county officers to act as officers of the district, in violation of the prohibition set forth in Section 165 of the Kentucky Constitution against one person at the same time holding offices in two different municipalities.

In Rash v. Louisville & Jefferson County Metropolitan Sewer District, 309 Ky. 442, 217 S.W.2d 232, this Court held unconstitional, on the grounds above mentioned, a statute that would have made the Director of Law of the City of Louisville the official attorney for the sewer district, and another statute that would have given the Board of Aldermen of Louisville the power to fix or change rates for services rendered by the sewer district. However, we think the statute now before us is not of the same character as those involved in the Rash case. The only power the city and county governing bodies are to exercise under KRS 76.245 is the power to determine whether a particular project proposed by the district shall be undertaken. Once the project has been approved, the district exercises sole authority in carrying it out. There is no question here of dual management, as there was in the Rash case. It is not a case of subordination of the authority of the sewer district in the exercise of a power conferred upon it by law, but rather a case where the power of the district never comes into existence until the city and the county have given their approval. As concerns surface drainage under the statute in question, the sewer district has been given the power to execute, but not the exclusive power to initiate. We think it is comparable to a situation where a district is not permitted by statute to embrace a city unless the city elects to come into the district. It could be said that no area of the city or county is really a part of the sewer district for surface drainage purposes, until the governing body of the city or county has approved the proposed drainage plan for that area.

There is no basis...