Lowery v. City of Lexington

Opinion of ti-ie court by JUDGE NUNN Affirming. This action was instituted by C. B. Lowery, appellant, to test the validity of Ordinance No. 1372, passed by the city council of Lexington, Ky. The ordinance was to authorize and provide for the construction of a system oí sewers in the city of Lexington, and to order an election to determine the question of issuing $150,000 of bonds of the city for that purpose. The city demurred to the petition of appellant, the court sustained the demurrer, and adjudged that the ordinance was invalid and void. To test that question is the object of this appeal. The first section of the ordinance authorizes sewers to-be constructed in accordance with plans drawn by Col. George E. Waring, with such changes, alterations, extensions-, and additions as might be determined upon in the mode and manner hereinafter set out and provided. The second section provided the manner of issuing the- bonds,, and the terms thereof. The other sections, down to the seventh, provided the manner of holding the election and determining the result thereof. The seventh section is as follows: “Ge-oirge S. Shanklin, L. G. Cox, R. P. Stoll, J. R. Barr, Judge Matt Walton and Gus Straus are hereby employed by the city of Lexington to superintend and supervise the construction of the sanitary sewer system of said city as provided for in this ordinance. And the general council is hereby authorized to pay to said named persons as wages a sum not to exceed $300.00 each.” Section 8 authorizes the employment of a capable, competent sani [161] tary engineer, who was authorised, under the superintendence of the persons named in section 7, to superintend all work, examine all materials, contracts, and purchases made under this ordinance, and, under the direction of the persons named, to superintend the construction of the sewer, disposal field, tanks, buildings, machinery, or appliances to be constructed under the ordinance. Section 9 authorized the persons named in section 7 to advertise for bids for the construction of the system, and to fix such restrictions and limitations therein as they might determine, and receive the bids, and to open and compare same, and to report to the general council the names of the lowest and best bidders, and to prepare all necessary contracts, specifications, and plans. If, in the judgment of the persons named in section 7, the bids received by them were too high, or for any reason were not such bids as the city should accept, they were authorized to reject all bids and advertise for new bids, without reporting to the general council their action. Section 9 closes as follows: “It being distinctly understood and provided in this ordinance that said persons are not required to report to the general council any bids which, in the judgment of said persons, the general council ought not to accept, or any contracts which the said persons do not believe the city ought to enter into.” Section 10 provided that no money should be paid to any contractor under any contract entered into by virtue of this ordinance until the work had been examined and approved by the engineer employed under this ordinance, and a certificate issued to such contractor by the engineer, and the same was approved by the persons named in section 7, and when the .certificate was thus issued and approved the same should become binding upon the city, and should be paid out of the proceeds of the sale of the bonds. [162] Section 11 of the ordinance closes as follows: “If any part of this ordinance is declared illegal by any court of competent jurisdiction, then no bonds are to be issued under this ordinance, and this ordinance is to be considered as invalid and void.” Appellee’s counsel contends that the ordinance is void because it creates new offices and officers, and names the persons to fill them, which he claims is in violation of the Constitution and the city charter. Appellant’s counsel, on the other hand, contend that the ordinance does not create any office or officer, and that the persons named in the ordinance were not appointed as officers, but only as agents of the city to superintend the construction of the sewerage system provided for therein. We are of the opinion that the ordinance is void in either event. If they are to be regarded as officers, then it is void because the city had no power, under the Constitution and charter, to create any office or officers other than those provided for therein. See the case of Lowery v. City of Lexington, 113 Ky., 763, 24 R., 516, 68 S. W., 1109. If it was intended by the ordinance to make them simply agents, then it is void because they supplant the city council in the matters provided for in the ordinance. The General Assembly, by section 3058 of the Kentucky Statutes of 1899, delegated to the city council of the city of Lexington the power and authority, by ordinance, to establish, erect, and maintain sewers; and it had no power by ordinance to delegate this power to others, and relieve itself of responsibility. We do not mean to be understood to say that the city council should perform the manual labor, or be present in a body or individually to superintend the construction of the sewer; but it should retain the power and control, and remain, supreme in the matter of the approval of the plans and specifications, ma [163] terial to be used, prices to be paid for same, the acceptance or rejection of bids for the w'ork, and the approval or rejection of the work when completed, the issual of the bonds, the payment of the money on contracts, and other like duties and powers. The council had no right or power to delegate such duties and powers to others, and relieve itself from the labor and responsibility thereof. Dillon, in his work on Municipal Corporations, vol. 1 (3d Ed.), section 96, uses this language: “The principle is a plain one that the public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in sucb'manner as it shall judge best, can not be delegated to others.” In the same work (volume 2, section 779), this language is found: “We have already had occasion to refer to the principle that public powers conferred upon a municipality, to be exercised by its council when and in such manner as it shall judge best, are incapable of delegation. The principle extends to the authority conferred upon a municipal corporation to levy and collect taxes, or to determine upon the necessity and character of local improvements.”. To the same effect is the case of Hydes v. Joyes, 4 Bush, 464, 96 Am. Dec., 311. We are clearly of opinion that the ordinance is void. Wherefore the judgment of the lower court is affirmed.