Hatfield v. City of Covington

• Decision Date: 12 October 1917
• Citation: 177 Ky. 124,197 S.W. 535
• Parties: HATFIELD v. CITY OF COVINGTON.
• Court: Kentucky Court of Appeals

197 S.W. 535

177 Ky. 124

HATFIELD v. CITY OF COVINGTON.

Court of Appeals of Kentucky.

October 12, 1917

Appeal from Circuit Court, Kenton County.

Suit by the City of Covington against J. T. Hatfield. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions.

Wm. J Deupree and M. H. McClean, both of Covington, for appellant.

A. E Stricklett and F. W. Schmitz, both of Covington, for appellee.

MILLER J.

This is an appeal from a judgment of the Kenton circuit court sustaining the validity of a proposed bond issue for $140,000 by the city of Covington, a city of the second class, for the purpose of obtaining sufficient funds to pay its floating indebtedness, pursuant to a vote of the people at an election held November 7, 1916. At the same election nine other bond issues of the city of Covington, for an aggregate sum of about $360,000, and for the purpose of enabling the city of Covington to extend and complete its system of public ways streets, and thoroughfares, were likewise approved by the people. This appeal, however, only directly affects the bond issue for $140,000 above referred to.

Several questions have been presented by the briefs, but in view of the conclusion we have reached concerning the validity of the publication of the ordinance calling the election, it is not necessary that we should consider any other question. Section 3069 of the Kentucky Statutes is a part of the charter of cities of the second class, and reads as follows:

"If in any year, the general council shall deem it necessary to incur any indebtedness, the payment of which cannot be met without exceeding the income and revenue provided for the city for that particular year, it shall, by ordinance, order an election by the qualified electors of the city to be held, to determine whether such indebtedness shall be incurred. Such ordinance shall specify the amount of indebtedness proposed to be incurred, the purpose or purposes of the same, and the amount of money necessary to be raised annually by taxation for an interest and sinking fund, as herein provided. Such ordinance shall be published for a least two weeks just preceding the election in the official newspaper in and for such city, or by posting written or printed copies thereof at three or more public places in such city, if there be no such official newspaper."

The ordinance calling the election was enacted by the board of commissioners of the city of Covington on September 21, 1916, and was published in the Kentucky Post, the official newspaper for the city of Covington, on September 25, October 23, 24, 25, 26, 27, 28, 30, 31, and November 1 and 2, 1916. The Kentucky Post is published daily in the city of Covington.

Eliminating the first publication of September 25, 1916, as immaterial in the consideration of this question because that day is not embraced within the two weeks named in the statute, it will be observed that the first publication was on Monday, October 23d, and that the ordinance was published throughout that week ending with Saturday, October 28th. It was likewise published on Monday, Tuesday, Wednesday, and Thursday, November 2d, of the ensuing week but was not published on Friday November 3d, or Saturday, November 4th, of that week or at any subsequent time. The election was held on the following Tuesday, November 7th. So if we are to treat the qualifying phrase "two weeks just preceding the election" either as meaning fourteen days just preceding November 7th, or the two weeks of seven days each which preceded the week in which the election was held, it is apparent that the ordinance was not published every weekday "for at least two weeks just preceding the election," since it was not published either on Friday, or Saturday, or on the Monday just preceding the election.

Did this publication satisfy the statute? The only case cited by counsel upon either side is Central Construction Co. v. City of Lexington, 162 Ky. 286, 294, 172 S.W. 648. In that case section 3069, supra, was considered under a publication somewhat similar, in principle, to the case at bar. In the Lexington Case the ordinance had been published on October 27th, 28th, 29th, 30th, 31st, and November 1st, 2d, 3d, 4th, and 5th, October 27th, the first day of the publication, was Sunday, and November 5th, the last day of the publication, was the day on which the election was held. In holding the publication insufficient to satisfy the statute the court said:

"It is manifest in the instant case that there was not a sufficient publication of the ordinance providing for the holding of the election. Whether the provision of the act, supra, requiring it to be published for 'at least two weeks just preceding the election,' be construed to mean each of the two weeks, running from Sunday to Saturday, inclusive, next preceding the week in which the election was held, or fourteen days just preceding the election and including the day thereof, under neither computation can it be made to appear that there was a publication of the ordinance for at least two weeks just preceding the election. The act does not require a daily publication of the ordinance for two weeks just preceding the election; therefore it would seem that its publication once in each of the two weeks in a weekly newspaper would be sufficient, if made once in each of the two weeks just preceding the election, but, according to the admitted facts, even this was not done by appellee."

In holding this requirement of the statute to be mandatory the court, in the Lexington Case, supra, further said:

"The cases in other jurisdictions relied on by appellee's counsel as sustaining the sufficiency of the notice given of the election here involved are based upon statutes unlike that of this state, or attempted to be supported by reasoning we think it unwise to adopt. The provision of the act, supra, as to the publication of notice of the election is clearly mandatory; therefore it will not do to say that anything short of a substantial compliance therewith will suffice; and, obviously, such a failure to obey its requirements as is here shown must be regarded as fatal to the validity of the bonds issued by the appellee city pursuant to the election."

The decisions upon this question are widely variant. Notices by publication are required in respect to a multitude of subjects; and if the subject is such as to call for a liberal interpretation of the requirement as to notice, a conclusion against a continuous publication may be reached; whereas a strict construction of the requirement may lead to the opposite conclusion. Furthermore, where the requirement arises from a statute, other laws of the state relating to the manner of giving notice and the interpretation placed thereon may disclose the intention of the Legislature on the particular question. Montford v. Allen, 111 Ga. 19, 36 S.E. 305. To illustrate: Where other statutes requiring the publication of notices in newspapers uniformly prescribed the number of insertions, or in direct language indicated the prescribed number of issues of the paper which should contain the notices, the inference could be fairly drawn that, in the absence of language indicating the number of publications of a notice, one made at the time prescribed would be a compliance with the requirement of the statute. Koehler v. Hill, 60 Iowa 581, 14 N.W. 738, 15 N.W. 609. And the character of the newspaper in the particular locality is an element to be considered. If no daily newspaper is published in the town or city giving the notice, it is obvious that the requirement must not be held to contemplate the continuous daily printing of the notice. Neither will a requirement of a certain number of "days' notice" be deemed to mean that number of insertions in a weekly paper. Thus in Woodward v. Collett, 48 S.W. 165, 20 Ky. Law Rep. 1066, where the statute required a mayor to advertise for proposals to build a sidewalk "for at least ten days before the letting." It was contended that the advertisement should have been published for ten days in a daily newspaper before the letting. The court, however, overruled that contention, saying:

"We are of the opinion that the publication of the notice for bids, by its insertion in the paper for one time ten days before the day of the letting, as is alleged in the answer,

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