Hodge v. City of Princeton

• Citation: 227 Ky. 481
• Parties: Hodge v. City of Princeton et al.
• Decision Date: 22 January 1929
• Court: United States State Supreme Court (Kentucky)

227 Ky. 481

Hodge v. City of Princeton et al.

Court of Appeals of Kentucky.

Decided January 22, 1929.

1. Municipal Corporations. — Ordinance providing for construction of sanitary sewer system for a city of the fourth class under authority of Acts 1928, c. 88, was not invalid because of fact that it was

enacted by members of the general council in violation of pledges made while candidates for office, in that the only corruption or bad faith that will subject action of municipal officers to review is such as concerns or is connected with their official action.

2. Municipal Corporations. — Allegation in petition to enjoin construction of sewer system, to effect that one of the members of the council voting for the ordinance was a dealer in sewer pipe, cement, and other builders' material, was insufficient to show any disqualifying interest to vote on ordinance, there being no allegation that he was in any way financially interested in contract, except that he voted for the passage of the ordinance with expectation and fraudulent purpose of being able to sell necessary materials.

3. Municipal Corporations. — Claim that tax assessed for construction of sewer system is confiscatory may be made at time it is sought to collect the tax, and does not authorize injunctive relief against construction of the system pursuant to ordinance.

4. Municipal Corporations. — Ordinance providing for construction of sewer system by city of the fourth class under authority of Acts 1928, c. 88, was not discriminatory by reason of fact that it required property that was unimproved or of small value to pay at the same rate as improved or more valuable property.

5. Municipal Corporations. — City council of a city of the fourth class in passing ordinance providing for construction of sewer system under authority of Acts 1928, c. 88, had power to create a single sewer district.

Appeal from Caldwell Circuit Court.

S.D. HODGE for appellant.

C.A. PEPPER for appellees.

OPINION OF THE COURT BY JUDGE CLAY.

Affirming.

By an act which became effective and is now chapter 88, Acts 1928, the General Assembly at its 1928 session conferred on the board of council of cities of the fourth class the power to construct, reconstruct, maintain, alter, repair, or change sewers along or under any of the streets, alleys, or highways of the city, or such other rights of way as it might acquire, and to assess the entire cost, including the construction of intersections, to an amount not exceeding $2 per front foot of the abutting property. When, however, the amount of the quotient, after dividing the entire cost of the construction of the sewer, exceeds the sum of $2 per front or abutting foot, then the entire cost of construction is to be assessed upon the lots and land in the district according to the benefits received. The act further provides that the construction of such sewer system may include sewage disposal plants mains, and laterals for the common use and benefit of all the sewers of the city, the cost thereof to be included in and to be a part of the total cost of the construction. After the act went into effect the city council of the city of Princeton, a city of the fourth class, passed an ordinance declaring the necessity for, and providing for, the construction of a sanitary sewerage system for the city, together with sewerage disposal works upon the ten-year installment plan, and naming the streets, alleys, highways, and public and private ways under and along which the sewers will be constructed, and describing the property benefited thereby and subject to the payment of the same, and declaring and defining the districts in which the sewer would be constructed.

This action was brought by S.D. Hodge, a citizen, taxpayer and property owner, against the city of Princeton and its officers and the successful bidder, to enjoin the construction of the sewer system. A demurrer was sustained to the several paragraphs of the petition as amended, and the petition was dismissed. Plaintiff appeals.

The principal ground on which the validity of the ordinance and the contract enacted pursuant thereto is attacked is that the action of the members of the council was a corrupt violation of the platform pledges made by them while candidates for office. The platform on which they ran is as follows:

"As previously stated, if elected, we shall use every effort to extend the present inadequate sewerage system to the part or those parts of the city where sanitation is most needed as fast as the finance of the city will permit. We shall not attempt, if elected, to force compulsory sewerage connection unless the public health and common decency demand it. Even then we do not believe it would be wise to force sewerage connection at the expenses of abutting property on property of...