Hanlon v. Cleary

• Court: Kentucky Court of Appeals
• Writing for the Court: MILLER, J.
• Citation: Hanlon v. Cleary, 133 S.W. 953, 142 Ky. 46 (Ky. Ct. App. 1911)
• Decision Date: 02 February 1911
• Parties: HANLON, County Atty., et al. v. CLEARY, County Judge, et al.

133 S.W. 953

142 Ky. 46

HANLON, County Atty., et al. v. CLEARY, County Judge, et al.

Court of Appeals of Kentucky.

February 2, 1911

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by F. J. Hanlon, County Attorney of Kenton County, and others, against Walter W. Cleary, County Judge, and others. From a judgment sustaining a demurrer to the petition plaintiffs appeal. Affirmed.

F. L Hanlon, for appellants.

Myers &amp Howard, S.D. Rouse, and C. B. Thompson, for appellees.

MILLER J.

This action was brought by the county attorney of Kenton county for and on behalf of that county against the county judge and county commissioners constituting the fiscal court of the county for the purpose of enjoining the defendants from entering into a contract with C. M. Hanna for the reconstruction of 25 miles of the turnpike roads in Kenton county. The grounds relied upon for the injunction are that the contract is illegal because it was made in violation of a rule of the Kenton fiscal court, and, further, because the court violated section 4315, Ky. St. (Russell's St. § 5448), which, it is claimed, applies to this case, and requires competitive bidding in the letting of all contracts of this character. Under the direction of the fiscal court its clerk was directed to, and did advertise for bids for the reconstruction of 100 miles of turnpike roads in Kenton county, in accordance with specifications on file in the county court clerk's office. In response to this advertisement, the Logan & Jennings Company submitted a bid to do the work for $345 per mile. Garretson submitted a bid based upon lineal foot measure, which amounted to $1,200 per mile, and C. M. Hanna offered to do the work at $200 per mile. Hanna's bid was accepted in part, and for the reconstruction of 25 miles of road, although his bid offered to reconstruct 100 miles of road. It is contended, however, that Hanna's bid was not submitted under, and did not comply with, the specifications in the following respects: It included a bid for extra work, a maintenance proposition, that he was to be paid for every five miles of road when it was completed, while the specifications provided for monthly payments to the contractor in amounts not to exceed 90 per cent. of the work then done, and that it did not propose to take up the bed rock and shoulder rock and break them in the manner prescribed by the specifications. It is further contended that the contract was invalid because it was accepted for 25 miles, when the bids were based upon specifications calling for 100 miles of road, and also because there is no law providing for a reconstruction of the highways of the state. The circuit court sustained a demurrer to the petition, and the county attorney appeals from the order dismissing it.

Before considering the questions relating to the alleged irregularities of the bid, it is proper to consider the larger questions presented (1) by appellant's contention that there is no law authorizing a reconstruction of turnpike road; and (2) by appellee that there is such authority and that the making of contracts therefor is not controlled by section 4315 of the Statutes.

1. Section 1840 of the Kentucky Statutes, relating to "Fiscal Courts," sets out in detail the jurisdiction and powers of fiscal courts, and among other powers they are given "jurisdiction to appropriate county funds authorized by law to be appropriated" to "provide for the good condition of the highways in the county." Section 4306, Ky. St. (Russell's St. § 5439), found in the chapter on "Roads and Passways," provides as follows: "The fiscal court of each county shall have general charge and supervision of the public roads and bridges therein, and shall prescribe necessary rules and regulations for repairing and keeping the same in order, and for the proper management of all roads and bridges in said county under and subject to the provisions of this act. The public roads shall be maintained, either by taxation or by hands allotted to work thereon, or both, in the discretion of the fiscal court of the respective counties, as hereinafter provided." Section 4315 of the same chapter, in so far as it is applicable, reads as follows: "In counties wherein roads are worked by taxation, it shall be the duty of the supervisor, or if there is no supervisor, the county judge, to advertise for fifteen days in succession in some newspaper of general circulation in the county or by written or printed notices posted up in three or more conspicuous places in each voting place in said county just preceding the regular monthly meeting of the fiscal court in April in each year, that the fiscal court will receive bids to let out to the lowest and best bidder (who shall give bond with surety approved by said court) the working and keeping in repair of all roads in said county for a term of not less than one nor more than four years, not however including in such letting, roads previously contracted for. The said work shall be done as prescribed in bonds of contractors, the fiscal court reserving the right to annul any and all contracts made with contractors,...