Miller v. City of Louisville

• Citation: 99 S.W. 284
• Parties: MILLER v. CITY OF LOUISVILLE ET AL. WIEMER v. CITY OF LOUISVILLE ET AL.
• Decision Date: 25 January 1907
• Court: Court of Appeals of Kentucky

99 S.W. 284

MILLER v. CITY OF LOUISVILLE ET AL.

WIEMER v. CITY OF LOUISVILLE ET AL.

Court of Appeals of Kentucky.

January 25, 1907

Appeals from Circuit Court, Jefferson County, Chancery Branch, First Division.

"Not to be officially reported."

Action by Franklin Miller against the city of Louisville and others and by Robert F. Wiemer against the same defendants. From judgments of dismissal in each action, plaintiffs appeal. Affirmed.

Gibson Marshall & Gibson, for appellant Miller. Lane & Harrison and D. W. Sanders, for appellant Wiemer. A. P. Humphrey and A. E Richards, for appellee.

HOBSON J.

By an act of the General Assembly approved February 19, 1906 (Acts 1906, p. 1, c. 1), entitled "An act to enable cities of the first class to construct a comprehensive system for the disposition of sewerage," it was provided that the mayor of cities of the first class may appoint four persons, who with the mayor, shall constitute a sewerage commission. The persons so appointed shall constitute a body corporate under the name of the "Commissioners of the Sewerage of Louisville," and shall have capacity to contract and be contracted with, and to sue and be sued by that name. The commission may appoint an engineer, secretary, and treasurer, and such assistants as it deems necessary. The chairman, chief engineer, and secretary and treasurer are required to give bond. When the commission has determined what system of sewerage is most expedient, it must report to the general council. If within 30 days each board of the general council does not, by a two-thirds vote, reject the plan proposed by the commission, it becomes final. If the general council thus rejects the plan reported by the commission, it may, by two-thirds vote of each board, adopt an alternative system reported by the commission, and, if it does not do this within 30 days, then the commission has the right to choose a system and carry it out. The council has no power to vary any system proposed by the commission. The commission has power to make surveys, and to locate its system of sewerage and to construct it. It may acquire property by gift, purchase, or by condemnation. All work done or supplies purchased involving an expenditure of $500 or more shall be by contract awarded to the lowest and best bidder. In order to provide money for the projection, construction, and establishment of the sewerage system, it was further enacted that the general council may adopt an ordinance submitting to the voters of the city at the November election, 1906, the question whether bonds of the city shall be issued for the purpose named. If the vote is in favor of the issuing of the bonds, the bonds are to be issued and placed under the control of the commission, and are to be sold by it at not less than par. All disbursements of the commission shall come out of the proceeds of the sale of the bonds. It is also provided in the act that, if the people do not vote for the issue of the bonds under the ordinance, then on the 1st day of December, 1906, all powers granted to the commission shall cease, and the commission shall stand dissolved. After the passage of the act, an ordinance was passed by the general council as provided in the act, and at the November election, 1906, a vote was taken, which was in favor of the issue of the bonds. These two suits are filed, assailing the validity of the act, and to enjoin the issue of the bonds. The circuit court sustained a demurrer to the petitions, and, plaintiffs failing to plead further, dismissed the actions. From this judgment, the plaintiffs appeal.

It is insisted that the act is local and special legislation and is in conflict with section 59 of the Constitution. We are unable to see the force of this objection. The Constitution authorizes the General Assembly to divide the cities of the state into classes, and to provide for the government of each class. So long as there is only one city in any class, all legislation for that class of cities must of necessity be limited to the one city in the class. In other words, so long as Louisville is the only city of the first class, there is no way in which the General Assembly can provide for the government of Louisville but by acts for the...