Tuell v. Meacham Contracting Co.

• Citation: 140 S.W. 159,145 Ky. 181
• Parties: TUELL et al. v. MEACHAM CONTRACTING CO.
• Decision Date: 31 October 1911
• Court: Court of Appeals of Kentucky

140 S.W. 159

145 Ky. 181

TUELL et al. v. MEACHAM CONTRACTING CO.

Court of Appeals of Kentucky.

October 31, 1911

Appeal from Circuit Court, Henderson County.

Action by the Meacham Contracting Company against Sudie Tuell and Carrie Tuell to enforce a lien. From a judgment for plaintiff, defendants appeal. Affirmed.

Montgomery Merritt and N. P. Taylor, for appellants.

Yeamon & Yeamon, for appellee.

LASSING J.

Henderson is a town of the third class. On May 4, 1909, the common council of said town passed on its first reading an ordinance providing for the improvement of a certain street. On June 1 1909, the ordinance was again publicly read, but failed to receive the required number of votes. On August 3d following the ordinance was again brought up, and the vote of June 1st by which it failed of passage, was reconsidered. At this meeting it received the requisite number of votes, and was passed. The statutory requirements were complied with and the improvement of the street undertaken. The appellants declined to pay the assessment against their property for this improvement, and the appellee company instituted a suit to enforce its lien, as provided by sections 3449 and 3453 Kentucky Statutes (sections 1426-1431, Russell's St.). These property owners defended upon the ground that the ordinance under which the improvement was made was void; it being contended that, when the ordinance failed of its passage on June 1st, it became a dead letter, and the council was without right or authority to thereafter consider this action of June 1st and again read and put the ordinance upon its passage. The trial judge was of the opinion that council had the right at a subsequent meeting to reconsider its action by which the ordinance failed to receive the requisite votes to pass it, and hence that it was a valid ordinance. From the judgment so holding this appeal is prosecuted.

Section 3279, Ky. St. (section 1296. Russell's St.), provides how the common council in cities of the third class may pass an ordinance. This section is as follows: "No ordinance shall take effect and be binding until the same shall have been twice publicly read and passed by the common council at two sessions, held on different days, a majority of those present voting for same on both passages, the yeas and nays being called and entered upon the journal: Provided, however that all ordinances requiring the improvements of streets and alleys, or the construction of sewers, or fixing salaries, or prescribing penalties, or fixing the rate of taxation, or amount of licenses, or appropriating money, where the amount appropriated is in excess of one hundred dollars, shall, on each passage, receive the votes of two-thirds of all the councilmen then elected, the yeas and nays being called and entered on the journal." It is not denied that the ordinance in question was twice publicly read and passed by the common council at two sessions held on different days, and that on each occasion it received the necessary two-thirds vote; so that, unless the council was without authority on August 3d to reconsider its vote of June 1st, when the ordinance failed to pass by the required two-thirds vote, the judgment must be affirmed. The statute prescribes no particular set of parliamentary rules by which the common council must be governed, nor had the council itself adopted any such rules. Still it is necessary that the council should proceed along some fixed, reasonable, and recognized rule, and, if their action comes within this requirement, it must be upheld. The statute simply requires that the ordinance should be publicly read at two meetings held upon different days, and that it should receive upon each of said occasions a two-thirds vote. The object of requiring the ordinance to be publicly read is to give the public notice that the council is proceeding in a matter in which the public is or may be interested.

It is urged for appellee that here the ordinance was publicly read, not twice, but three times, and the fact that it failed of passage upon its second reading was in no wise prejudicial to appellants, and that, by reason, of the failure of the ordinance to pass upon June 1st, they were given an additional opportunity to be heard. As opposed to this, it is insisted for appellants that, when the ordinance upon its second reading failed to pass, they had a right to, and did, regard the matter as settled, and gave it no further attention, and that in again taking it up on August 3d and passing it an undue advantage was taken of the property holders.

The whole question resolves itself into this: Had the council under the rules ordinarily observed by legislative bodies the right to reconsider its action of June 1st after the lapse of two months? This is the first time this precise question has been presented to this court; and the opinions of other courts upon it are not uniform. In Jersey City, etc., Ry Co. v. City of Passaic, 68 N. J. Law, 110, 52 A. 242, it is held that: "When an ordinance is stayed in its progress to a final passage through a failure of proper...