Turner v. Kelly

*775 ' Opinion op the Court by Commissioner Hobson— Affirming. Evarts is a town of the sixth class in Harlan county. The board of trustees on May 4, 1925, adopted an ordinance for the improvement of certain streets of the town, and advertised for bids for the work. Bids were received, and on May 16, the bid of Owen Kelly and E. S. Forrester, who were the lowest and best bidders, was accepted. A written contract was thereupon entered’into. On May 28, about sixty property owners of the town filed an action against the trustees and the contractors to obtain an injunction restraining the contractors from carrying out the contract on the ground that the proceedings were invalid. No injunction was obtained; the contractors proceeded with their work; when it was finished the work was accepted by the trustees and the cost of the work was apportioned to the property owners. Thereupon the contractors brought an action against those property owners who had not paid to enforce their lien upon the property for the cost of the improvement. This action was consolidated with the pending action by the sixty property owners to enjoin the performance of the contract. On final hearing the action by the property owners to obtain an injunction was dismissed and judgment was entered in favor of the contractors in the action brought by them. From this judgment fifteen of the property owners appeal. These fifteen are a part of the sixty who brought the first action. The remainder of the property owners have prosecuted no appeal. It is insisted for appellants that a part of Yocum street improved under the ordinance was not included in the contract. In the order of the county court, entered April 12,1911, fixing the boundary of the town originally, the boundary included this territory. Section 3664, Kentucky Statutes, provides: “Whenever it is deemed desirable to annex any territory to a town, or to reduce the boundaries thereof, the legislative department thereof may enact an ordinance defining accurately the boundary of the territory proposed to be annexed or stricken off, and such ordinance shall thereupon be published in at least ten issues of the daily paper published in and having the largest circulation in the town, or if there be no daily paper published in the town, *776 then in at least four issues of a weekly paper published in and having the largest circulation in the town; or if there be no daily or weekly paper published in the town, then by posting copies of the ordinance for at least ten days in four of the most public places in the town. In not less than thirty days after the enactment of such ordinance, if the publication or notice, as herein provided, has been made or given, and no petition is filed in the circuit court, as provided in the next section, the legislative department may, by ordinance, annex to the town the territory described in the ordinance hereinbefore mentioned, or reduce the limits, as the case may be; and upon the enactment of such ordinance, such territory shall become a part of such town or shall be stricken.” On March 21, 1921, the board of trustees entered an order changing the boundary lines of the town and leaving out a part of Yocum ’street, but this order had no effect to change the boundary under the statute, unless followed by a second order as therein provided. No advertisement was made and no second order was entered This left the boundary as it stood before. When a controversy arose in this case about it, the county court entered an order turning over the street to the town and the town entered an order accepting the offer of the county court. But this was unnecessary. The boundary could only be changed as provided by the statute, and the statute not having been followed no change had been made. The ordinance provided for the improvement of “Yocum street from its intersection with Nolan street, its entire length.” The advertisement for the work specified that Yocum street was to be improved from the intersection of Nolan street to the town boundary. There was no discrepancy here. The whole of Yocum street lay between the intersection of Nolan street and the town boundary. The street could not be improved its entire length unless it was improved from Nolan street to the town boundary. The ordinance provided that the cost of the improvement should be ascertained and assessed against the property abutting on each side of said streets or blocks, “except such part thereof as is required by law to be paid by the town.” There was no statute in force in *777 this class of towns requiring the town to pay for the street intersections or any other part of the work covered by the ordinance. But there were such provisions applicable in certain other classes of towns and the board of trustees were in doubt on the subject. When they made the first apportionment of the cost they did not .assess against the property holders the cost of the street intersection, but later made a reassessment apportioning to the property owners the cost of the intersections. This was pursuant to the rule laid down by this court in Morton v. Sullivan, 96 S. W. 807, and Bonar v. Town of Southgate, 215 Ky. 133. The ten-year bond plan was not adopted. No part of the improvement was required by law to be paid by the town. The trustees having by mistake failed to make a proper apportionment of the cost could have been compelled by the circuit court to make.a proper apportionment if they had refused to do ■so. When they did voluntarily what the court would have required them to do the effect of their action is the same as if it had been required by the court. The mandatory duty was' imposed upon them to make a proper apportionment. This they did in the end. The fact that they first made a mistake is immaterial. The statute provides that the cost of such work “shall not exceed 50% of the value of the ground after such improvement is made, excluding the value of the buildings and other improvements upon the property so improved.” Ky. Stats., sec. 3706. It is earnestly insisted that appellant’s property is ■of value insufficient to warrant the judgment of the circuit court under the statute. The court did not hold all the property owners liable for the full assessment, but reduced the assessment on the upper end of Yocum street to $4.00 a foot, holding that the fair value of this property was $8.00 a front foot. The evidence is very conflicting as to the value of the property. Appellants and a number of witnesses for them testify that the assessment exceeds the statutory limits. On the contrary, a number of witnesses testify on the other side that the assessment is well within the statutory limit. We have carefully gone over the evidence and, considering the facts stated by the witnesses, conclude that the weight of the evidence sustains the finding of the circuit court. Clearly it is not a case where it can be held that the mind is not left in doubt as to the *778 truth, and the settled rule of this court is not to reverse ¿he finding' of the eirouit court on questions of fact like this where on all the evidence the mind is left in doubt as to the truth. As no part of the expenses of the improvement was borne by the town the ordinance added nothing to the in-, debtedness of the town and was not invalid on the ground that it increased the indebtedness of the town beyond the constitutional limit. Judgment affirmed.