Meahl v. City of Henderson
| Decision Date | 09 March 1956 |
| Citation | 290 S.W.2d 593 |
| Parties | David MEAHL et al., Appellants, v. CITY OF HENDERSON et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
J. L. Dorsey, Henderson (on cross appeal: John S. Palmore, Henderson) for appellants.
John S. Palmore, Henderson (on cross appeal: Smith, Reed & Leary, Frankfort, Dorsey & Dorsey, Henderson), for appellees.
This is a suit for declaration of rights, under KRS 418.040 to 418.090, by the city of Henderson against abutting property owners on 7 streets situate in the city to determine whether the property owners properly may be taxed for the payment of the costs of constructing streets, curbs and gutters constructed by the city through a contract with the R. B. Tyler Company, Inc.
The judgment of the Henderson Circuit Court was in favor of the property owners on one of the streets (River Street), but adverse to the property owners on the other 6 streets. It also adjudged that the city of Henderson had entered into a valid contract with the R. B. Tyler Company for the construction of River Street and, since the property owners were not liable for the construction of the street, the city was required to pay the R. B. Tyler Company out of its general fund for the cost of the construction of River Street.
On the original appeal, appellants, who proceed by class representation, insist that the judgment improperly imposed a lien on their property. On cross appeal, the city urges that the judgment is erroneous because (a) it relieved the property owners from liability for the construction of River Street; (b) held that the city was liable to R. B. Tyler Company for payment out of its general revenues for the improvement of River Street; and (c) relieved certain property owners from the payment of interest from the date of their option to select the 10-year installment payment plan provided for by statute, yet held the city liable to R. B. Tyler Company for interest from July 12, 1954, which was the expiration date of 30 days after the apportionment ordinance was enacted.
This case has several general issues appropriate to all 7 streets which involve the general legal sufficiency of the steps taken by the city under Chapter 94 of the Kentucky Revised Statutes, and several special issues which are limited to particular circumstances and parties.
Some of the important steps taken by the city are these:
On March 25 and May 5, 1952, the city passed resolutions (pursuant to KRS 94.292) calling for the improvement of about 50 streets. These resolutions were properly published.
On July 28, 1952, and April 15, 1953, ordinances were passed which provided for the improvement of 18 of the streets, 7 of which are here in issue.
On June 8, 1953, a resolution was passed authorizing advertisements for bids on the proposed construction work.
On June 13 and June 20, 1953, pursuant to this resolution, 'Notice to Bidders' was published in a daily newspaper and, on June 12 and June 19, in another newspaper, another 'Notice to Bidders' was published. Both newspapers were of general circulation in the city. The notice advertised 13 streets for improvement and designated that bids would be opened on June 29, and awards made on June 30, 1953.
On June 30, 1953, a contract for improvement of the streets was awarded to appellee R. B. Tyler Company.
On August 4, 1953, a protest was filed with the city and a copy of it mailed to the construction company by the owners of the property on each of 7 streets. This reads in part as follows:
'We, the undersigned, who own property abutting on a portion of one of the Streets to be improved under the above mentioned contract, now notify the City of Henderson, Kentucky and R. B. Tyler Company, Inc. that we will not pay any cost or charge assessed against our property for the construction or improvement of a street.
On December 4, 1953, the city of Henderson filed this suit for a declaratory judgment. While this suit was pending, and after completion of the improvements later in the same month, the city, on May 25, 1954, enacted an ordinance accepting the work, apportioning the cost, and levying a tax on the benefited property, which ordinance was published on June 12, 1954.
Under the general issue appellants contend that the advertisement of the letting of the construction contract did not conform to KRS 94.306, which provides:
'The advertisement shall be published in a newspaper of general bona fide circulation in the city, once a week for two consecutive weeks prior to the day set for the opening of the bids.'
The date set for the opening of the bids was Monday June 29, 1953. The advertisement appeared in proper newspapers on Friday June 12, Saturday June 13, and one week later on Friday June 19 and Saturday June 20, and more than one week intervened from the last day of the advertisement on Saturday June 20 until the opening of the bids on Monday June 29.
Appellants argue that since no advertisement appeared during the week of 7 days preceding June 29, the city failed to comply with the statute and, in effect, argue that 'two consecutive weeks prior to the day set for the opening of the bids,' means next before or immediately preceding the bid opening.
We cannot agree with this contention because the word, 'prior,' does not necessarily mean 'next prior' to the happening of an event. The purpose of the statute is to give notice to interested bidders so that they may have sufficient time within which to examine the projects and make estimates as to building costs. Therefore the purposes of the statute were better served by this procedure where the prospective bidders were given an additional week to make their calculations. If this statute had in fact required that the advertisement be made on the Saturday prior to the Monday bid opening, some of the effectiveness of the advertisement would be lost because of the short period allowed for preparation of bids. In any event, we are not prepared to say that the word, 'prior,' as used, means 'next prior.'
In City of Olive Hill v. Howard, Ky., 273 S.W.2d 387, it was pointed out that some statutes place an emphasis on the number of times of publication rather than the minimum length of time. We believe this statute, KRS 94.306, falls within the category that limits the minimum number of times.
The owners next argue that the city, after having enacted ordinances for the improvement of 18 streets, only advertised for bids on and construction of 13 of the streets; that the selection of the streets to be advertised and contracted for was delegaged to the city clerk without direction to him as to which streets were to be selected for improvement; and insist that since the streets to be constructed were not named by the board of commissioners--which can speak only through its ordinances and not otherwise--the selection of streets for advertisement was without legal authority.
The reason why the city did not improve all of the 18 streets named in the ordinances seems to lie in the fact that between the time of enactment of the ordinances and the final action of the board in ordering advertisement, a good number of these streets had been repaired by private contract between the abutting owners and H. K. Williams Company, a road contracting company. Being faced with a situation where, in order to proceed under the ordinances, it would be necessary to remove the surface and begin new construction of the streets, the board deemed it a wiser course to leave untouched those portions which had been repaired.
We believe the board of commissioners recognized the true facts of the situation because, at a meeting held May 25, 1953, it took this action:
'Moved by Commissioner Pearce seconded by Commissioner Sights, that the City Engineer be directed to immediately submit plans and specifications for the paving of such streets as should now be paved and that as soon as said plans are received and approved by this Board that said Streets be advertised for permanent paving.'
On June 8, 1953, it specifically set out in a resolution:
'Whereas, certain of said streets referred to in said Ordinance have been improved by black top surface and do not require further permanent improvement, and on certain other said streets it has been determined that the specifications for said improvements should be changed, and with said changes and omissions therefrom it is the desire of this Board that bids be received and for permanent improvement, now therefore:
'Be It Resolved by the Board of Commissioners of the City of Henderson, Kentucky, that the Mayor be authorized to direct the City...
To continue reading
Request your trial
-
Gorrell v. City of Casper
...urging that there was a waiver here, defendants cite the cases of Blake v. City of Eureka, 201 Cal. 643, 258 P. 945, and Meahl v. City of Henderson, Ky., 290 S.W.2d 593, but it is unnecessary to discuss them as they do not deal with a situation where the property owner was unaware of a defe......