Robertson v. Southern Bitulithic Co.

• Decision Date: 28 January 1921
• Citation: 190 Ky. 314,227 S.W. 453
• Parties: ROBERTSON ET AL. v. SOUTHERN BITULITHIC CO. ET AL.
• Court: Kentucky Court of Appeals

227 S.W. 453

190 Ky. 314

ROBERTSON ET AL. v. SOUTHERN BITULITHIC CO. ET AL.

Court of Appeals of Kentucky.

January 28, 1921

Appeal from Circuit Court, McCracken County.

Suit by the Southern Bitulithic Company and others against Charles L Robertson and others on apportionment warrants for a street improvement. Judgment for the plaintiffs, and defendants appeal. Affirmed.

James Campbell, Jr., of St. Louis, Mo., for appellants.

Bradshaw & MacDonald, of Paducah, for appellees.

QUIN J.

Paducah is a city of the second class organized under the commission form of government.

By an ordinance adopted April 10, 1916, and recorded the next day the board of commissioners authorized the construction of Broadway from Eleventh to Sixteenth streets, on the ten-year payment plan. It is provided in the second section of said ordinance that said work shall be completed on or before six months after the passage and recordation of said ordinance.

The contract for the work was awarded the Southern Bitulithic Company in a contract approved September 26, 1916, in section 6 of which it is provided the contractor shall commence the work within ten days after notice from the commissioners instructing it to proceed, the work to be completed within six months following the service of said notice.

By a resolution passed October 23, 1916, and recorded the following day, the commissioners extended the time for the completion of the aforesaid contract to October 1, 1917, work not to be commenced before April 1, 1917.

In said resolution the time for the completion of the work is given as October 25, 1916, whereas it should have been September 1916, six months from the date the ordinance was recorded. It will be noted that this resolution was not passed until more than six months after the original ordinance became effective.

Appellants the owners of property abutting said improvement, declined to pay the amount assessed against them, suit was filed on the apportionment warrants, and from a decision adverse to their contentions they have appealed.

It is insisted that no valid lien was created for the cost of the improvement because the time for the completion of the work, as in the original ordinance provided, had expired before the commencement of the work. It is also contended that a lien for such improvements can be created by ordinance only and not by an order or resolution.

There is no common-law liability upon lot owners to pay for street improvements; this liability is purely a creature of statute, and the latter must be followed to create a valid lien. City of Henderson v. Lambert, 14 Bush, 24.

Under Kentucky Statutes, § 3096 (a part of the charter of cities of the second class), the general council may by ordinance provide for the improvement of streets and other public ways. There is no complaint that the original ordinance did not follow this statute. We are concerned only with the fact that the work was not commenced nor completed within the period provided, as well as the validity of the resolution extending the time for completion.

The difference between an "ordinance" and a "resolution" is that the former prescribes a permanent rule of conduct or government, while the latter is an order of the council of a special or temporary character. The ordinance is the more deliberate of the two and attended with the greater solemnity. Usually an ordinance cannot become effective or be adopted at one meeting. In practical operation, however, the distinction between the two depends upon the formalities attending the adoption of the respective acts. Dillon on Mun. Corp. §§ 571 and 633. And see City of Louisville v. Parsons, 150 Ky. 420, 150 S.W. 498, and see McQuillen on Mun. Corp. § 633.

In subsection 14, § 3235C, Kentucky Statutes, authorizing the organization of a second-class city under the commission form of government, the distinction between the formalities attending the passage of an ordinance and a resolution is removed and they are placed upon the same plane of deliberation and efficacy. Under the same subsection, the construction or reconstruction of streets may be ordered by either an ordinance or resolution. The reason for this change is plain. Under the commission form of government, the general council is abolished, and with few exceptions, the legislative, executive, and administrative powers of the city are vested in the board of commissioners composed of the mayor and four commissioners. Subsection 12, § 3235C, Ky. Stats.

A resolution adopted with all the formalities required in the case of an ordinance will be regarded as an ordinance and given effect accordingly, since the substance,...