Town of Hardinsburg v. Mercer

• Decision Date: 12 December 1916
• Citation: 189 S.W. 1117,172 Ky. 661
• Parties: TOWN OF HARDINSBURG v. MERCER.
• Court: Kentucky Court of Appeals

189 S.W. 1117

172 Ky. 661

TOWN OF HARDINSBURG v. MERCER.

Court of Appeals of Kentucky.

December 12, 1916

Appeal from Circuit Court, Breckinridge County.

Suit by the Town of Hardinsburg against N. McC. Mercer, in which defendant pleaded a counterclaim. From a judgment dismissing the petition and counterclaim, plaintiff appeals, and defendant cross-appeals. Affirmed on both original appeal and cross-appeal.

David R. Murray, of Hardinsburg, for appellant.

Claude Mercer, of Hardinsburg, for appellee.

CLAY C.

The town of Hardinsburg brought this suit against N. McC. Mercer to collect a sidewalk assessment. The defendant not only resisted the assessment, but pleaded a counterclaim for injury to his property. On the final hearing both the petition and counterclaim were dismissed. The town appeals and the defendant prosecutes a cross-appeal.

The board of trustees of cities of the sixth class is empowered to construct or reconstruct sidewalks and assess the abutting property for the cost thereof. Section 3706, Kentucky Statutes. Pursuant to this authority, the board of trustees of the town of Hardinsburg passed an ordinance on July 7 1910, ordering the construction of certain sidewalks including the sidewalk in front of the property of the defendant. The ordinance provided that the walks shall be laid "according to grade established by town board of trustees." At the same meeting it was ordered that a surveyor establish the grade for the proposed sidewalks. H R. Woerner, who was then county surveyor, was employed by the board of trustees to fix the grade. He made a survey and set stakes indicating the grades. There was oral evidence tending to show that the grades fixed by the surveyor were reported to the board of trustees and approved by resolution of the board. The minutes of the board fail to show any order or resolution accepting, approving, or fixing the grades established by the surveyor. The grade established by the surveyor in front of defendant's property was several inches higher than the grade of the old sidewalk. The defendant protested against the grade. While he was absent from the city, the sidewalk was constructed.

1. While the statutes authorizing sidewalk improvements in municipalities of the sixth class do not in terms provide that the board of trustees shall fix the grade, the only power which such municipalities have is that conferred upon the board of trustees. The power to order the improvement carries with it as a necessary incident the additional power, not only to prescribe the length, width, and material of the proposed sidewalk, but all other specifications, including the grade thereof. Redersheimer v. Bruning, 113 La. 343, 36 So. 990; Elliott on Roads and Streets (2d Ed.) § 461, p. 473; also, see section 579, pp. 604 and 605; O'Leary v. Sloo, 7 La. Ann. 25; Burgess v. City, 21 La. Ann. 143; Lincoln St. Ry. Co. v. City of Lincoln, 61 Neb. 109, 84 N.W. 802; Schenley v. Commonwealth, 36 Pa. 29, 78 Am.Dec. 359; Dean v. Borchsenius, 30 Wis. 236; Williams v. City of Detroit, 2 Mich. 560; State v. City Council of Elizabeth, 30 N. J. Law, 176; Dashiell v. Mayor and City Council of Baltimore, 45 Md. 615. Indeed, there is no more important feature connected with street improvements than the grade. One grade may be proper and economical, while another may be injurious and wasteful. For this reason, we have frequently written that the establishment of the grade for sidewalk or other street improvements is a legislative act involving the exercise of discretion, and cannot be delegated to the city engineer or to any other person; and that the failure of the council or other legislative body to fix the grade is fatal in an action to enforce the statutory lien for the cost of such improvement. Hydes & Goose v. Joyes, 4 Bush, 464, 96 Am.Dec. 311; Richardson v. Mehler, 111 Ky. 408, 63 S.W. 957, 23 Ky. Law Rep. 917; Board of Councilmen of Frankfort v. Murray, 99 Ky. 422, 36 S.W. 180, 17 Ky. Law Rep. 279; Zable v. Louisville Baptist Orphans' Home, 92 Ky. 89, 17 S.W. 212, 13 L.R.A. 668, 13 Ky. Law Rep. 385; Frantz v. Jacob, 88 Ky. 525, 11 S.W. 654, 11 Ky. Law Rep. 55; Nevin v. Roach, 86 Ky. 492, 5 S.W. 546, 9 Ky. Law Rep. 819; City of Henderson v. Lambert, 14 Bush, 24; Murray v. Tucker, 10 Bush, 240; City of Covington v. Boyle, 6 Bush, 204; Harris v. Zable, 5 Ky. Law Rep. 114; City of Augusta v. McKibben, 60 S.W. 291, 22 Ky. Law Rep. 1224; Noland v. Mildenberger, 123 Ky. 660, 97 S.W. 24, 29 Ky. Law Rep. 1179; Lowery v. City of Lexington, 116 Ky. 157, 75 S.W. 202, 25 Ky. Law Rep. 392; Tilford v. Belknap, 126 Ky. 244, 103 S.W. 289, 11 L.R.A. (N. S.) 708, 31 Ky. Law Rep. 662; City of Lexington v. Walby, 109 S.W. 299, 33 Ky. Law Rep. 116.

But it is contended for plaintiff that the grade fixed by the surveyor was approved by a resolution of the board of trustees which cannot now be found. The only proof of this contention is oral evidence to the effect that the surveyor reported his action to the board of trustees and that the board of trustees passed the resolution. The records of the board fail to show any such attention. The approval of the grade fixed by the surveyor required action by the trustees as a body and not as individuals. The charter of cities of the sixth class provides for the appointment of a clerk. Kentucky Statutes, § 3682. It is made the duty of the clerk "to keep a full, true record of all the proceedings of...