Reynolds v. Bracken County

• Decision Date: 24 June 1921
• Citation: 232 S.W. 634,192 Ky. 180
• Parties: REYNOLDS ET AL. v. BRACKEN COUNTY ET AL.
• Court: Kentucky Court of Appeals

232 S.W. 634

192 Ky. 180

REYNOLDS ET AL. v. BRACKEN COUNTY ET AL.

Court of Appeals of Kentucky.

June 24, 1921

Appeal from Circuit Court, Bracken County.

Suit by Isaac Reynolds and others against Bracken County and others. From a judgment dismissing the petition, plaintiffs appeal. Reversed, with directions.

M. J Hennessey, of Augusta, for appellants.

M Hargett, of Augusta, J. P. McCartney, of Flemingsburg, R. G Williams, of Covington, and W. B. Harrison, of Brooksville for appellees.

TURNER C.

Appellants, citizens and taxpayers of Bracken county, brought this action seeking to enjoin that county, and its fiscal court, and the individual members thereof, from executing or carrying out a certain contract made by the fiscal court with the defendant Godfrey Miller for the reconstruction under the contract of certain turnpike work in that county, and seeking to enjoin them from appropriating any money or funds obtained from the sale of certain bonds authorized by an election held in that county in June, 1916, or applying any of the proceeds of the bonds to the repair or reconstruction of the turnpike in question, and to have declared void all warrants theretofore issued by the fiscal court in payment of any work done on the said turnpike under the contract.

Before answer an amended petition was filed, and the defendants demurred to the petition as amended, but, before action on the demurrer, filed their answer in two paragraphs, and the plaintiffs thereupon demurred generally to the answer; and the court having overruled their demurrer to the answer, they declined to plead further, and their petition was dismissed, and they have appealed to this court.

In the petition as amended it is alleged, in substance, that in June, 1915, an election was held in that county upon the proposition whether the county should issue bonds for road and bridge purposes, and that the proposed bond issue was defeated at that time because the voters of the county did not know and were not made aware, prior to the election, what turnpikes in the county would be reconstructed or improved by the proceeds of the bond issue, or what amounts would be expended on each turnpike in the county, and that therefore after the calling of the second election for June, 1916, but some time before that election was held, and in order that the voters might vote intelligently on the said proposition, a mass meeting of the voters of the county was held, and at such meeting a committee designated as the "Good Roads Committee" was appointed, consisting of a substantial citizen from each precinct in the county, and that this Good Roads Committee, representing the voters of the county, formulated a plan classifying the various turnpikes in the county, and distributing the proceeds of the proposed bond issue among them, and submitted their plan to the fiscal court of the county; and the fiscal court on the 26th of April, 1916, at a regular meeting, adopted the plan so formulated and submitted by the committee of citizens, and on that day, in compliance with the recommendation, entered the following order, to wit:

"Whereas, there has been an election called in Bracken county, on the 17th day of June, 1916, for the purpose of taking the sense of the voters of said county on the question,

'Are you in favor of issuing $200,000 in bonds for the purpose of building roads and bridges in said county,' " and:

"Whereas, the voters and taxpayers of Bracken county have selected a committee, known as the 'Good Roads Committee,' consisting of a substantial citizen from each precinct to supervise and apportion fairly the road fund to be voted and,

Whereas, said committee has made an equitable and fair distribution of said road fund among the various precincts and on the various turnpikes of said county:

Now be it by the court resolved and ordered that in accordance with the recommendation of said committee it is ordered and directed that the proceeds of the sale of all bonds to be voted at said election, June 17, 1916, should result of said election favor the issuance of same, be and the same are hereby apportioned and allotted and to be used as and for the following purposes, to wit:

The following named turnpikes are classed as first-class turnpikes and are to be and are hereby ordered to be reconstructed, each and every mile of same, according to state specifications, at a cost not to exceed an average cost of $1,600 per mile and the sum of $69,600 is hereby ordered to be set aside out of said fund for the sole and only purpose of reconstructing said turnpike, and should there be any balance remaining after the proper construction of same, then said balance is to be used in the reconstruction of the second-class turnpikes and become part of the ______ class turnpike fund.

The first-class turnpikes are as follows, to wit:

The Augusta, Brooksville, Milford and Claysville turnpike, from Augusta to Harrison county line, 21 1/2 miles; turnpike Chatham to Germantown, 5 miles; turnpike Germantown to Brooksville, 5 miles; the Washington Trace turnpike from Powersville via Willow and Berlin to Lenoxburg, 11 miles; Augusta to Dutch Ridge turnpike, 1/2 mile. (Total 43 1/2 miles.)

The following named turnpikes are classed as second-class turnpikes and are to be and are ordered hereby to be reconstructed, each and every mile of same, according to state specifications, at a cost not to exceed an average cost of $1,185 per mile and the sum of $130,400 is hereby ordered to be set aside out of the fund for the sole and only purpose of reconstructing said turnpikes, and should there be any balance remaining after the proper reconstruction of same, then said balance is to be used as a fund for the repair of the third-class turnpikes, same being all other turnpikes and dirt roads other than the first and second class roads in said county.

Said second-class turnpikes are as follows, to wit:

Parina and Mt. Olivet road, 7 miles; Augusta and Minerva road, 7 1/2 miles; Dover and Augusta road, 6 miles; Dutch Ridge turnpike, 6 1/2 miles; Augusta & Berlin turnpike, Augusta to Berlin, 11 1/2 miles; Brooksville to Wellsburg road, 7 miles; Wellsburg and Gertrude road from Grainges to Hilton's, 3 miles; turnpike running from Foster and Lenoxburg turnpike to Locust Creek Bridge, 7 miles; Perkins Ridge road from Cumminsville to Bradford and Washington Trace road, 4 1/2 miles; Belmont Turnpike, Petra to Santa Fé, 5 miles; Hillsdale turnpike, 2 1/2 miles; Gertrude to Augusta and Brooksville turnpike, 3 miles; Germantown to Bradgeville, 6 miles; Two Lick turnpike, 7 miles; Bradford and Johnsonville turnpike to Washington Trace road at Morris, 6 miles; turnpike running from Lenoxburg to Bradford, 6 1/2 miles; Lenoxburg and Foster turnpike, 5 miles; Mt. Olivet and Falmouth turnpike from Santa Fé via Milford to Holton's store, 9 1/2 miles; turnpike from Willow via Holton's store to Pendleton county line, 5 miles.

It is further ordered that all other roads in said county be and they are hereby classed as third-class roads and it is ordered that only such repairs as are absolutely necessary be made on the first and second class turnpikes, to be reconstructed during the next two years, during which time they will be being rebuilt; and that the balance remaining of the repair funds each year during the next two years and also the balance remaining of the road bond fund after the reconstruction of the first and second class roads, be used in repairing the third-class roads.

It is further ordered that any premium received for the said bonds, same should be about $6,000 or more, be used in purchasing crushers and road machinery."

It is further alleged that the order was properly passed and enacted by the fiscal court and entered on its records on that date, and that before the holding of the election copies of the order were printed and published in the two newspapers of general circulation in the county, and on cards posted in every precinct thereof, and at every polling place therein.

It is further alleged that, by reason of the plan so formulated by the Good Roads Committee in accordance with their mandate from the mass meeting of citizens, and the subsequent adoption of that plan by the fiscal court, and the general advertising of the fact throughout the county that the court had adopted this plan, and because of the belief of the voters generally that this plan would be carried out, and all of the turnpikes of the county reconstructed or improved with the proceeds to be derived from the bond issue as set out in the order, the said bond issue was authorized and approved by the voters of the county at the said election.

It is further alleged that by reason of abnormal business conditions and the exorbitant cost of labor and materials, no action was taken by the fiscal court looking to the reconstruction of the turnpikes until 1919, at which time the turnpike leading from Augusta via Brooksville and Milford to the Harrison county line was contracted for.

It is further alleged that the fiscal court on the 19th day of June, 1920, at an adjourned meeting entered into a contract with the defendant Godfrey Miller for the reconstruction in that county of a turnpike of the first class known as the Washington Trace turnpike, running from Powersville to Lenoxburg, a distance of 10.57 miles, and that the fiscal court at that meeting accepted the bid of Miller for the reconstruction of the same, subject to the sale of the turnpike improvement bonds, and that the...