Board of Councilmen v. Murray

JUDGE HAZELRIGG delivered the opinion of the court. The common council of the city of Frankfort, a city of the third class, adopted an ordinance requiring the appellee and other owners of certain described property, within thirty days, to construct sidewalks, curbing and gutter ways, [424] of a particular description, in front of their respective lots. The appellee, failing for the time indicated to comply with the ordinance after notice of its passage, the mayor, after advertisement as provided by law, contracted for the construction of the work with the appellant, Noonan, which contract was ratified by the council. The work was thereupon completed under the supervision of the mayor and engineer, and the cost apportioned among, the property owners as required by the charter of the city. The board approved the estimates and apportionment, but the appellee, insisting that the ordinance is invalid, refuses to pay the assessment, against him of $138.60. The ordinance is alleged to be invalid because not in accordance with the provisions of the city charter. Section 3449 of the Kentucky Statutes provides that the common council shall have power to pass ordinances to require the improvement of streets and alleys, subject to the mode and manner herein designated, either by grading and paving or by grading, paving and macadamizing at the cost of the owner or owners of the ground fronting such improvement, and the cost, of such improvement to be apportioned according to the number of feet front each may own, etc. Section 3450 provides that “upon the passage of any ordinance requiring the improvement of streets and alleys or parts thereof it shall be the duty of the mayor to enter into a contract with any person or persons offering or agreeing to do the work required to be done by such ordinance upon the best and most, advantageous terms,” etc. The contention of appellee is that the ordinance is violative of the law, in that it requires the lot owners to construct the improvement in front of their respective lots, when the section quoted does not authorize the council to so require, [425] but on the contrary provides that upon the passage of the ordinance the mayor shall enter into a contract with any person, etc. The trial court seems to have been of that opinion. At any rate it sustained a demurrer to the petition seeking to enforce the lien provided by the statute up >n the ground, as argued by appellee’s counsel, that the ordinance was invalid because it did not conform to the sections quoted. We can not reach this conclusion. It may be that the council may require the improvement to be done at the cost of the owner under the mayor’s contract with some other person without affording the owner an opportunity of doing it himself, and we are Inclined to think that the law admits such a construction. But it does not follow because such an opportunity is afforded by the ordinance that the owner can complain. Yery serious complaint is often urged in cases of this kind because such an opportunity is not given, and with a better show of «reason than where the owner is given a chance to do the work himself. Besides, the work here has in fact been done, and done under the mayor’s contract with Noonan, after approval by the council, as required by the charter. It is also argued by counsel that the ordinance does not “fully declare and prescribe the kind and extent of improvement to be made.”' (Section 3449.) An inspection of the ordinance, however, shows a substantial compliance with this provision. In Hydes & Goose, &c. v. Joyes, 4 Bush, 264, a case relied on by counsel, the ordinance provided that certain sidewalks, “or such portions of said sidewalks as the city engineer may direct, be graded and paved at the costs of the owners of property binding thereon, said work to be done subject to the supervision and [426] control of the city engineer,” etc. And this court held it invalid because it was an attempted delegation of legislative power. The engineer might have determined, the court ■reasoned, to pave one portion with brick, one with stone and another with plank without transcending his authority, though such an ordinance could hardly have received any support in the legislative body of the city. Here the location of the streets to be improved, and the lots and parts of lots of the owners were sufficiently designated in the ordinance, and the sidewalks were to be of “brick and curbed with stone and provided with stone gutterwavs, the sidewalk to be eight feet wide from' the line of the respective lots to the inside line of.the curbing, and to be at the grade or elevation heretofore fixed by the city engineer and. adopted by this board, and as shown and established by stakes already set in front of said respective lots or parts of lots.” We do not think the ordinance is invalid because the kind of stone and its thickness and width are not prescribed. Some of the details of this kind of work may properly be left to the city engineer without a violation of the law forbidding the delegation of legislative power. In our opinion, therefore, the petition of the appellant states a good cause of action under the provisions of the statutes, and the demurrer ought to have been overruled. Judgment reversed for proceedings consistent with this opinion.