Massey v. City of Bowling Green
| Decision Date | 20 January 1925 |
| Citation | 206 Ky. 692 |
| Parties | Massey v. City of Bowling Green, et al. |
| Court | Kentucky Court of Appeals |
Appeal from Warren Circuit Court.
P. H. SIMS and GUY H. HERDMAN, amici curiae.
G. D. MILLIKEN and W. B. GAINES for appellant.
CHANEY & DIXON and RODES & HARLIN for appellees.
In the city of Bowling Green at the regular November, 1923, election there was voted a bond issue in the sum of $125,000.00 for the construction of a city hospital.
In this action, appellant, a taxpayer, seeks to enjoin the issual of the bonds and the construction of that building on certain property purchased by the city for water works purposes. A number of irregularities in the proceedings of the council and some constitutional questions have been raised.
An agreed stipulation of fact was filed in the lower court and a motion entered for a temporary injunction therein, which was refused, whereupon plaintiff entered a motion for a temporary injunction before a judge of this court upon the record then existing; that motion was considered by four members of this court and it was their opinion that the injunction was unauthorized, and it was refused and a written opinion delivered by the justice before whom the motion was made, all concurring therein.
On a return of the case to the lower court, it was submitted for final judgment upon the same record, and a judgment entered dismissing the petition. The plaintiff has appealed, and by agreement the case has been advanced for hearing and submitted. Many of the questions raised and passed upon in the former motion are neither new nor novel, and as we concur in the opinion and ruling therein, it is not deemed necessary to set them out in this opinion.
On this appeal amici curiae have filed briefs, by which it appears that a suit filed by them and styled, J. K. Barr v. City of Bowling Green is pending in the Warren circuit court, involving the same questions here raised, and in which emphasis is laid upon the question that the city is without power to locate the hospital at the place designated in the contract of construction. It is argued that, while this question is raised in the pleadings in this case, it has not been fully developed in the evidence and cannot be properly considered herein; that a final judgment now rendered on an incomplete record will become stare decisis, and thereby be prejudicial to the plaintiff in the second suit, and for that reason a determination of this appeal should be postponed until a final judgment is had in that case, and the record in it brought up on appeal.
This is disputed by appellees, who file with their brief a copy of the petition in the other case, together with the deeds relied upon by plaintiff therein. A copy of Barr's amended petition is also made a part of the record.
The water works company was incorporated by a legislative act of 1866, as amended by similar acts of 1868 and 1880. By those acts the company was authorized to issue bonds, with a lien on its property for security. The city of Bowling Green was authorized to take all the stock of the company and issue bonds in payment thereof to be secured by a lien on the water works property. This the city did; and bonds thus issued and secured to the extent of $85,000.00 are alleged to be now outstanding.
Beginning in 1868, the city has purchased several contiguous pieces of property, in all containing about 12 acres. The conveyance to the city of these properties was in each instance a straight deed without any restriction, condition or qualification unless a sentence appearing in the habendum of the deed from — Crosswaite, executed in 1869, constitutes a restriction. It reads:
"The land hereby conveyed is purchased by the town of Bowling Green for water works purposes, but this forms no part of the consideration to the party of the first part."
A reservoir embracing about two acres has been constructed in the center of the grounds, and no other part of it is used for water works purposes, and it does not appear that any more will be needed for that purpose, at least for years to come.
The ground proposed to be appropriated for the hospital is a part of this land. It embraces three-fourths of an acre, of high, unimproved land at the northwest corner of the boundary, some distance from the reservoir, and is admirably located for the purpose in view.
It is argued, first, that under the Crosswaite deed the city cannot appropriate any of this land for a hospital, reliance being had on section 3290a, Ky. Statutes, which reads:
"That no city of the third class, or town which is, or may hereafter be, the owner of any water works system, or lighting system by gas or electricity, shall sell, or convey or lease or mortgage or otherwise encumber the same, or the income therefrom, without the assent of two-thirds of the total number of legal voters of such city or town voting at the election held for that purpose, to be held only after 60 consecutive days' notice thereof, next before such election, published in said city or town, in the newspaper having the largest circulation therein."
We do not think this ground tenable. From the record the only use the water works company has for the land is for its reservoir. As now constructed the reservoir is amply sufficient in size; and if the property in question is appropriated to the hospital, the remainder of the tract will be more than sufficient for an indefinite expansion of the water works system; hence it cannot be impaired by an appropriation of this spot for the purposes indicated.
Although the land is under a lien to secure the payment of the water works bonds, an appropriation of a part thereof by the city to its own use in the establishment of a hospital would not release the lien or be inconsistent with it, but the erection of a building thereon would add to the security of the bondholders.
In view of this lien a question might be raised as to whether the city would desire to place a building thereon to cost over $100,000.00. But the property belongs to the city and it will continue to control both the water works and the hospital, though conducted by separate departments of the municipal government and the wisdom of the procedure is for the council to determine and not for us. Certainly it is not a sale or encumbrance upon the water works property as contemplated by the statute quoted.
Nor is the provision in the Crosswaite deed a restriction by the grantor. It evidences a straight sale so far as he is concerned, and disclaims any consideration arising out of the use of the property. True, it indicates the purpose for which the city purchased the property but certainly that provision was never intended to obligate the city to retain twelve acres of land, where only two were needed.
It is next...
To continue reading
Request your trial