Hearne v. City of Catlettsburg

• Decision Date: 16 June 1931
• Citation: Hearne v. City of Catlettsburg, 239 Ky. 592, 40 S.W.2d 293 (Ky. Ct. App. 1931)
• Parties: HEARNE v. CITY OF CATLETTSBURG et al.
• Court: Kentucky Court of Appeals

40 S.W.2d 293

239 Ky. 592

HEARNE v. CITY OF CATLETTSBURG et al.

Court of Appeals of Kentucky

June 16, 1931

Appeal from Circuit Court, Boyd County.

Action by J. C. Hearne against the City of Catlettsburg and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

Martin & Smith, of Catlettsburg, for appellant.

George F. Gallup, of Catlettsburg, and David Browning, of Ashland for appellees.

WILLIS J.

J. C Hearne, an abutting lot owner, instituted an action against the city of Catlettsburg and a paving contractor to enjoin the alteration of the plans and specifications for the paving to be done in front of his lot. A final judgment was rendered in favor of the city and the contractor, from which the plaintiff has prosecuted the present appeal. The case was considered by all the judges of this court on a motion before the writer of this opinion for a temporary injunction, and in disposing of the motion the facts were thus narrated:

Catlettsburg a city of the fourth class, on August 5, 1930, adopted a resolution declaring the necessity for the improvement of certain streets, including all those streets constituting the Midland Trail (U. S. Routes 23 and 60) through the city, to the intersection of Oakland avenue with the south line of Plum street. The reconstruction was to be done in accordance with chapter 113 of the Acts of 1916. (Sections 3562 to 3577 inclusive, Ky. Statutes, 1930 Ed.) The resolution provided that the work was to be done according to plans and specifications to be furnished and approved by the state highway commission, upon grades, levels, and widths established by that body. The resolution recited that $60,000 had been pledged by the state highway commission and some private contributors which was to be applied and credited upon the cost of the reconstruction of the streets mentioned, and the balance of the cost was to be assessed against the abutting landowners in the manner provided by the statutes applicable to the situation. The resolution was posted in several public places in the city, but was not published in any newspaper.

On August 25, 1930, by unanimous vote of all members of the city council, a resolution was adopted reciting the conditions confronting the city and requesting the state highway commission, as soon as possible, to let the contract for the improvement. On September 3, 1930, an engineer was employed to make plans and specifications for the proposed work to be sent to the state highway commission for its approval. An ordinance had been passed by unanimous vote on September 1, 1930, which, after a recital of the conditions creating the urgent necessity for the improvement, provided for the paving of the streets mentioned (1) "with brick upon a concrete base, or (2) with one course concrete, with curb and gutters installed, or (3) by resurfacing with asphalt upon suitable base, or (4) with any other material, upon such grades, levels and widths as might be established by the State Highway Commission."

The ordinance, on September 30, 1930, was readopted by unanimous vote, and was duly printed in a paper published in the county and circulating in the city. It contained a provision that the work was to be done in accordance with chapter 113 of the acts of 1916, on the ten year payment plan, "at the exclusive cost of the owners of property fronting or bordering and abutting thereon as provided in said statutes and in accordance therewith."

On September 5, 1930, the state highway commission approved the action of its chief engineer in sending to the city of Catlettsburg "detailed map and plans on this proposed work."

On September 17, 1930, the city clerk was directed to advertise for bids on the proposed work "according to the plans and specifications of the State Highway Department." A "notice to contractors" was published for two weeks, calling for bids to be submitted on October 1, 1930, for the construction and rebuilding of streets on Center street, Division street, Louisa street, and Oakland avenue, a distance of 13,000 feet, the approximate quantities being:

"Concrete paving, 24,200 square yards,

Concrete curb and gutter, 1,200 feet,

Resurfacing old brick streets, 14,666 square yards,

Rebuilding Brick streets on new base, 9,400 square yards."

It should be noted that the city had accepted the plans and specifications of the state highway commission; and they contained no provision that the plans might be changed, or the entire work done with a single material at the unit prices bid. Each bidder was bound to assume that the work would be done partly with concrete, partly with asphalt, and partly with brick, in the relative proportions approximated in the advertisement.

The contract was awarded on October, 1 1930, to the Ashland Construction Company, and on October 14, 1930, a formal contract was entered into between the city and the contractor for the work on the estimated quantities at the unit prices bid. The ordinance awarding the contract recited that the total price of the work was $128,590.88, and the contractor gave bond with a corporate surety. The formal contract provided that the total estimated cost of the work at the unit prices was $128,590.88, but the unit prices bid and incorporated in the contract were to govern. Payment was to be made from the voluntary contributions aggregating $75,000 and from assessments against the abutting property, except property owned by any of the contributors which was to be free of assessment. Boyd County, the C. & O. Railway Company, the Ohio Valley Electric Railway Company, and the Midland & Atlantic Bridge Company were included among the contributors, and each owned land abutting upon the improvement. It is not claimed, however, that any donation was less than the potential assessment against the lands of the donor, if the donation had not been made voluntarily.

The contract, on December 9, 1930, was approved by the state highway commission.

On November 14, 1930, the city council unanimously agreed to change the plans so as to provide for a concrete road the entire length of the improvement. The contractor had already commenced the work. On March 9, 1931, the city council finally adopted an ordinance providing for the construction of new sidewalks along the street improvement rendered necessary by widening the old streets, to be paid for out of the contributed funds.

It was determined on the facts recited that a temporary injunction should be granted to the plaintiff to prevent the defendants from changing materially the plans for the paving upon which the contract was let; and if such change was deemed necessary, the portions of the paving to be changed would have to be readvertised and relet in accordance with the statute. Thereupon the circuit court issued a temporary injunction in accordance with the order made, and the city, with the consent of the contractor, proceeded to readvertise and relet the contract to conform to the requirements of the law. A different contractor was awarded the work, and the subsequent proceedings were brought into the record. The plaintiff concedes that the circuit court conformed to the principles enunciated in the order made by the writer when the case was before him on the application for a temporary injunction but since such orders do not constitute authority, and are not binding except for the temporary purpose to be served, he has brought the record here for a final and authoritative adjudication of the case on the merits. Hence we proceed to consider the various objections urged to justify the relief sought.

1. The first attack leveled against the contract was that the attempt to alter the established grades would result in an incidental injury to the abutting land. The power of the city to establish, raise, or lower the grades of streets is undoubted. Ky. St. § 3560 and section 3562. City of Owensboro v. Hope, 128 Ky. 524, 108 S.W. 873, 33 Ky. Law Rep. 375, 15 L. R. A. (N. S.) 996. If the property of an abutting owner is damaged by a change in grade of a street, he may have a remedy, but he may not restrain the exercise of the authority of the legislative boards, or the execution of the plans for an improvement of the streets. Bodley v. Finley, 111 Ky. 618, 64 S.W. 439, 23 Ky. Law Rep. 851; Herndon v. Brawner, 180 Ky. 813, 203 S.W. 727; Bayes v. Town of Paintsville, 166 Ky. 688, 179 S.W. 623, L. R. A. 1916B, page 1027.

2. The legality of the whole proceeding was questioned because the initial resolution of necessity for the improvement was not published in any newspaper. The statute provides: "Such resolution shall be published in one or more issues of a newspaper published in the county in which such city is located, if any, and if there be no paper published in said county, then in some paper which circulates in said city, at least thirty days before the ordinance ordering such improvement shall pass the board of council." Section 3570, Ky....