City of Louisville v. Gast ( 1904 )

Opinion op the court by

JUDGE BARKER

Reversing.

'This record presents the sole question as to whether or not the general council of cities of the first class have the power to pass two or more separate and distinct ordinances for original construction of public highways! at the same time, there being no objection thereto by any member. The ■statutory law regulating the subject in hand, is contained in the following sections of the Kentucky Statutes of 1903;

“Section 2777. No ordinance shall be passed until it shall have been read in full in each board and free discussion allowed thereon, and no ordinance shall pass both boards on the same day. No ordinance shall embrace more than one subject, and that shall be expressed in its title. No ordinance shall be altered or amended in any way, except by repealing it.’”

“Section 2826. No public way shall be opened, narrowed, closed, o,r constructed, and no sidewalk shall be constructed or reconstructed, and no public welts or cisterns shall be dug and walled, except by ordinance recommended by the board of public works.”

“Section 2834. . . . Payments (of apportionate warrants) may be enforced upon the property bound therefor by proceedings- in court; and no error in the proceedings of the general council shall exempt from payment after the work has been done as- required by either the ordinance or contract. . . .”

There is no inhibition in the statutes against the final passage of two or more ordinances at the same time and by the same vote, although the legislative requirement as to the passage of ordinances is set forth with minute particularity in the statutes above quoted. It will be observed that no ordinance for the original' construction of public highways can be enacted, except upon the recommendation of the board of public works (section 2836) ; that it shall not be passed until it shall have been read in full in each board, and free discussion allowed thereon, nor shall it pass both boards on the same day; that it shall not embrace more than one subject, and that it shall be expressed in. its title; that it shall,not be altered or amended in any way, except by repealing it (section 2777) ; and, if it be for an original improvement, it shall not pass both boards-of the general council at the same meeting, and at least two weeks shall elapse between its passage from one board to the other (section 2834). With the legislative will in regard to the passage of ordinances expressed with such minute particularity, it is inconceivable that, if it was intended that two or more ordinances should not be grouped: together and passed by one vote, this prohibition would not have been expressly enacted.

In McQuillin on the La.w of Municipal Ordinances, section 116, it is said: “The council generally acts by vote. In the absence of express provision, the vote may be given in any form which clearly expresses the will of the members. It may be by ballot, by resolution, by the adoption of a verbal motion, or in any other manner. 'A vote is but the expression of the will of a voter, and', whether the formula to give expression to such law be a ballot or viva voce, the result is the same. Either is a vote.’ Departure from the form described' for corporate action, as in the passage of an ordinance, will not affect the validity of such action, unless the charter of governing law makes such formality vital, as by declaring the action or ordinance void unless the form prescribed be followed.” In the case of Wright v. Forrestal, 65 Wis., 349, 27 N. W., 54, on this subject it was said: “Nor do we think the fact that the resolution was voted upon at the same time a vote was taken upon other resolutions vitiates the vote, and that therefore the resolution was never adopted by the council. All who have any knowledge of the proceedings of legislative bodies know that the practice adopted by the common council of the city of Milwaukee is a common practice in both branches of the Legislature of this State, and^of other States. To hold that this resolution was not adopted by the common council for the reason stated would invalidate a very considerable part of the acts of our Legislature. The practice may not be one to be approved, but we are unable to say that it is not a lawful practice. The statute does not say that a separate vote shall be taken and recorded upon each resolution or act passed by the council, but that ‘the vote 'on the passage of every such resolution shall be taken by yéas and nays, and duly entered in the journal .of proceedings.’ Here the vote was taken on the resolution in the proper way,' and the yeas and nays were entered, etc., as' required by law. . . . If it be desirable that a separate vote should be taken upon resolutions of this nature by the common council, it is very easy for the Legislature to so expressly direct.” This was said in a case involving the enforcement. of a lien for the cost of street improvements. In the absence of an express statutory declaration prohibiting the passage of ordinances in the manner complained of in this case, we should hesitate to hold the ordinance involved herein void upon the ground contended for by appellees. But we do not mean to be understood as holding that, if a member objects, two or more ordinances may be lawfully voted on at one and the same time.

But we are not required to rest this case wholly upon the foregoing principles. By section 2834 it is expressly provided that “no error in the proceedings of the general council shall exempt from payment after the work has been done as required by either the ordinance or contract.” Substantially, the question involved here arose in the case of Broadway Baptist Church, et al. v. McAtee, etc., 8 Bush, 508, 8 Am. Rep., 480. In that case it was said: “It may well be doubted whether the general council did nor err in failing •to give the property owners an opportunity of having the improvement made by private contract. But the ordinance under which the work was done was a matter of public .record, and every citizen or property holder to be affected had constructive notice of its adoption, and from the time the contractors commenced work, it may be assumed that the appellants had actual notice not only of the ordinance, but of the contract under which the work was being done. It does not appear that either of them labored under any legal disability. If it was their intention to rely upon this alleged error as a defense to the claims the contractors would have against them for the assessments provided for by the ■ordinance to pay the cost of the improvement, it was their duty to have notified them of such intention. Under the circumstances, it is peculiarly proper that the provision of the charter, to the effect that ‘no error in the proceedings of the general council shall exempt from payment after the work is done as required by ordinance or contract’ should be .applied to them. By failing to speak when it was their duty to do so, they must be held to have waived the right intended to be secured to them by the chartei*, of making the improvements, for the cost of which they were bound, by private contract. We are of opinion that ordinances providing for the construction or reconstruction of public ways at the cost of property owners are not embraced by the provisions of the sixty-seventh section of the charter. But ■if they were, the error in failing to vote upon the ordinance under which this improvement was made, on two different days, is one which comes within the curative provision of section 12, just referred to. Ordinances providing for the improvement of streets, under the peculiar provisions of the charter of Louisville, are not void merely because the general council fails to follow strictly its delegated powers. Under the general rule of construction, the authority delegated to municipal corporations is to be strictly construed, and must be closely pursued. (Citing authorities.) But the sovereign power that delegates this authority may, when it sees proper, change or abrogate Ibis rule of construction. So far as the improvement of public ways in Louisville, and the assessment of taxation to pay the cost thereof, are concerned, this rule is abrogated, and a different one prescribed, by the provision in question.” The law which this opinion construed was in all material respects the same as' that under which the question at bar arose. The very end to be obtained by the enactment that “no error in the proceedings of the general council shall exempt from payment after the work has been done as required by either the ordinance or contract” was the prevention of such questions as the one presented by this record. In order that the citizen», ■and property owners may be fully advised as to the passage of ordinances, it is provided by section 2773, Ky. St., 1903, that “each board shall keep a correct journal of its proceedings, and immediately after the adjournment of each session the proceedings thereof shall be published once in one English and one German daily paper printed in the city and having the largest permanent circulation in said city,” and, by section 2774, “all ordinances shall be published in like manner as the proceedings of the general council.” These provisions are carried into effect at great expense, and are manifestly for the protection of those to be affected by municipal legislation, and they cast upon the citizen the duty of keeping himself advised as to the proceedings of the municipal legislature, to object to legislation adverse to his interests, and to point out irregularities and deviations from statutory requirements before they have been put in force. And this is especially true of the enforcement of -ordinances for the original construction of public ways. It was clearly the intention of the Legislature, if property owners failed to object to the, enforcement of an ordinance for the improvement of public ways in front of their property before the work was done by the contractor, to shut .off all irregularity in the preliminary steps as a defense to his demand for payment after he has performed his work according to the terms of the ordinance and the contract. This being true, as the work has been done according to the terms of the ordinance and contract, the answer of appellees presented no defense to the cause of action set up in the petition of appellant Gast, and both his and the city’s demurrers should have been sustained.

Wherefore the judgment, both as to the city and to Jacob Oast, is reversed, with directions to sustain the demurrers to the answer, and for further proceedings consistent herewith.

Petition by appellee for rehearing overruled.