proceeded to issue bonds for the unpaid portions of the assessment and to offer them for sale by advertisement, when the appellees instituted a suit against the city, in which they sought to restrain the city from the sale of the bonds. No immediate injunction was obtained, and the bonds, after the filing of the suit, were sold to the contractors, Kelly Bros., through the agency of a certain bank in Maysville. from it upon the remainder of the street, causing it to be unsatisfactory for travel and the use of the street. The appellees in their suit contend: First. That the city had no power to improve a street by original construction, except to the entire width of the street. Second. That under the ordinance of the 23d day of May, 1910, the street was to be improved with vitrified brick from curb to curb, and that same had not been done. Third. That the ordinance amendatory of the specifications, of date July 25th, was void because of its want of publication, as required by the statutes. and that they were for that reason not bound for the assessments. After the first installment of the bonds became due the city instituted a suit against the January & Wood Company one of the abutting property owners, to recover from it the amount of the assessment of the cost of the street and "headers" apportioned to it, Fourth. The amendatory ordinance of July and to enforce a lien upon its property to 25th did not provide that the 7-foot strip satisfy the payment of the assessment ap- through the street which is occupied by the portioned to it. Defense was made to both railroad tracks should not be improved as resuits, and a statement of facts agreed upon, quired by the original contract and specifiwhich was filed after the two cases had cations, but it only provided that the conbeen consolidated, and it resulted in a judg-crete "headers" should be put in on each ment of the circuit court in the first-named side 14 inches from the railroad tracks, and suit which recited that, as the bonds had for these various reasons the contract under been already sold, the city was restrained the ordinance had never been complied with, from attempting to collect the assessment apportioned for the cost of the work, or to enforce any lien which might exist upon the abutting property to secure the payment of the assessments. The petition in the second stated case was dismissed. The city excepted to the judgment in each case and prayed an appeal to this court, which was granted. It should be stated that nothing was included in the assessments for the cost of constructing the street according to the ordinance in the vacant space left along and on each side of the railroad track, but the contract price for putting in the concrete headers, and which amounted to about $1,525, was included in the assessments, and was a part of the amount for which the city issued and sold its bonds. Paragraph 7 of the original plans or specifications for the work was to the effect that, if the engineer and council should deem it best, they might make alterations or modifications of the plans or specifications for the work and the price to be paid for the work as altered or modified, to be agreed upon in writing and signed by the contractor and some one authorized by the council on behalf of the city. The ordinance adopted on the 25th day of July on its face purported to be an amendment to the original specifications, which were a part of the ordinance of May 23d, and provided that any provisions of the original specifications as were in conflict with the provisions of the amendment should be repealed. The appellant contends that the amendatory ordinance of July 25th did not require publication, under the statute to make it valid, and that the change in the plans for construction of the street was such as was entirely reasonable and beneficial to the abutting property owners, and were such as the city had a right to make under the contract with the contractors, and that the abutting property owners are bound for the assessments, and which are a lien upon the property. [1] First. We will consider the contentions. of the appellees in the order stated above. Has the council of a city of the fourth class authority to provide for the original construction of a street, at the cost of the abutting property owners, except it improve the street to its entire width? The statutes relating to cities of the fourth class are silent upon the subject. Section 3572, Ky. Statutes, expressly provides that a portion of the length of a street may be improved by original construction, without an undertaking to improve the entire length of the street. The case of Town of Bowling Green v. Hobson, 3 B. Mon. 478, relied upon by appellees as sustaining their contention, cannot have any application to the power of the city council, under the present charter of cities of the fourth class, for the improvement of the streets. That opinion was based upon a provision of the charter of the named city When the street had been constructed as which authorized its trustees to cause a above stated, some one, presumably the Street street to be improved, upon the petition of a Railroad & Transfer Company-the agreed majority of the property holders upon the state of facts does not show whom-filled up street, and this court correctly held that it the space between the concrete "headers" required a majority of the persons owning with dirt and broken stone, and since that property upon the entire street, as to length, time the travel upon the street has cut and not a majority of the owners upon a certhat space into ruts, and mud would scatter tain section of the street. It is apparent that a rule requiring the entire width of a street to be improved, or else to withhold the authority to improve any portion of it, under the varying conditions as to width of streets and the nature of their surface, and the necessity and desirability of their improvement to their entire width, in all cases, would be a harsh and unreasonable construction of the statutes, and would greatly militate against proceedings to make useful and necessary improvements, and would oftentimes impose unnecessary burdens upon the abutting property owners. For these reasons, and in the light of the provision which is embraced in section 3567, Ky. St., which directs the council and the courts to "make all corrections, rules, and orders to do justice to all parties concerned," it seems that the better rule is to leave the question as to whether all or a portion of the width of the street shall be improved to the sound discretion of the board of council of the city, which discretion may be corrected if abused. [2] Second. Under the ordinance of May 23, 1910, the street was to be made of vitrified brick from curb to curb, and same has not been done for the space of seven feet, which is occupied by the tracks of the street railroad. The portion of the street not occupied by the tracks of the railroad was improved as provided for by the ordinance and contract. There is no attempt made to show that the improvement of the street, to the extent to which it was done, was not in accordance with the contract, and not in accordance with the ordinance, except as to the concrete "headers," or that it was not a substantial and valuable work and beneficial to the abutting properties. The plans and specifications for the improvement, which were duly adopted as a part of the ordinance of May 23, 1910, provided in section 7 that: "The engineer and council may, if they deem best, make alterations or modifications of the specification or plans for this work; the price to be paid for this work under such altered or modified specifications to be agreed upon in writing and signed by the contractor and some one authorized by the council on behalf of the city of Maysville." "And it is expressly agreed that such alterations shall not annul or violate this contract," etc. "Such additional work, alterations, or modifications shall be upon and subject to all the provisions of the original contract." that such engineer and council could make alterations and modifications. Section 2 of the plans and specifications provided that the words, "council and engineer” shall mean the council ór its committee and the engineer or his duly authorized agent. It thus appears that, in accordance with the ordinance of May 23, 1910, and in the contract entered into under it, the council had the right to make alterations in and modifications of the plans and specifications of the work, or that same could be done by the engineer and paving committee. If done by the council, it must have been necessarily done at a meeting of it, by ordinance, but if done by the engineer and paving committee, it was valid without a resolution or ordinance of the council, if thereafter approved by the council. [3] Third. The council undertook by the amendatory ordinance of July 25, 1910, to alter and modify the plans and specifications by providing for the placing of the concrete "headers" upon each side of the railroad track, and a contract was entered into by the mayor with the contractors, under authority from the council, to pay for the "headers." The action of the council, as far as the resolution of July 25th may be considered an ordinance, was void and ineffective, as it was never published. Sections 3487 and 3567, which are a part of the charter of cities of the fourth class, provide for the manner of the adoption of the adoption of ordinances and when they shall become enforceable. The terms of these statutes construed together make it plain, that no ordinance for the original construction of a street can be valid without publication, as provided in section 3487, supra; C. & O. Ry. Co. v. Mullins, 94 Ky. 355, 22 S. W. 558, 15 Ky. Law Rep. 139; Fox v. Middlesborough, 96 Ky. 262, 28 S. W. 776, 16 Ky. Law Rep. 455; City of Newport V. N. N. Bank, 148 Ky. 213, 146 S. W. 377; Muir v. Bardstown, 120 Ky. 739, 87 S. W. 1096, 27 Ky. Law Rep. 1150. [4] Fourth. It is true that the amendatory ordinance of July 25th does not provide for leaving the seven-foot strip occupied by the railroad track unimproved. The work was, however, being done under the supervision of the engineer and paving committee, who certified to the council that the work had been completed according to the contract and in accordance with the ordinance as adopted "That the power reserved to or conferred up- and published by the council. The report of on any body or person in the said specifications, the engineer and paving committee showed plans, and profiles may be exercised by said body or person, and expressly covenant that the that the part of the street which was ocagreement as to amount to be added or deduct-cupied by the street car tracks was left uned from the contract price for any omission, ad- improved, and nothing for the costs of imdition, or alteration shall be final," etc. The contract entered into for the performance of the work provided: The ordinance of May 23, 1910, of which the plans and specifications were a part, was regularly adopted and published, as required by law. The plans and specifications provided that alterations and modifications of same could be made by the engineer and proving same was apportioned to any of the abutting property owners. This report and apportionment of costs was adopted and approved by the council. We must presume that the contractors failed to improve the portion of the streets occupied by the railroad tracks because the city was unable to in order to enable the contractors to perform | made and to levy the assessment; that the their contract, and the seven-foot strip was work to be done must have been ascertained left unimproved by the direction of the en- and prescribed in the ordinance; and that gineer and paving committee, and with the the councils of the cities had no power to full concurrence of the council. When the accept a part performance of a contract and engineer and paving committee exercised the to subject the abutting property owners to authority vested in them by the ordinance the payment for the work performed. Henand contract to change the plans and spec- derson v. Lambert, 14 Bush, 24; City of Lexifications, by directing that the portion of the ington v. Wally, 109 S. W. 299, 33 Ky. Law street occupied by the car tracks be left un- Rep. 116; Hydes & Goose v. Joyes, 4 Bush, paved with vitrified brick, it cannot be said 466, 96 Am. Dec. 311; Murphy v. Louisville, that the leaving of such space unpaved was 9 Bush, 189; Murray v. Tucker, 10 Bush, not in accordance with the contract and ordi- 241. It remains true that the liability of the nance. It does not appear that the contrac- abutting property owner for street improvetors sought to be relieved from the paving ments depends and is derived from the statof the strip. ute laws of the state, and there is no liabil The modification of the plans and specifica-ity, except where created by statutes, but tions, which left unpaved the portion of the the liability of the property owner is destreet which was occupied by the railroad termined by the statute in force at the time tracks was not a captious and unreasonable the improvement of the street is made. exercise of discretion by the council, because Since the rendition of the above opinions, in it was unable to have the tracks temporarily the charter of cities of the fourth class, with removed for the purpose of doing the work, reference to the lien upon the abutting propand failed in its effort theretofore to compel erty for the cost of construction and reconthe railroad to bear any portion of the costs struction of streets, in section 3567 it has been provided as follows: of improving the streets, as an owner of abutting property, as appears from the opinion of this court in City of Maysville v. Maysville Street Ry. & Transfer Co., 128 Ky. 673, 108 S. W. 960, 32 Ky. Law Rep. 1366. From the portion of the contract under which the railroad and transfer company occupies the streets of the city, which is embraced in the agreed statement of facts, it appears that the railroad and transfer company is obligated to keep the portion of the street which it uses in the same good repair in which the remaining part of the street may be kept by the "When the work is undertaken under the procity. The council should require the rail- vision of section 3572, and is completed in acroad company to comply with its obligation, cordance with the contract, the work shall be rather than to lay the burden of paving the received by said city council upon receipt of a portion of the streets occupied by the rail-certificate from the city engineer and committee road tracks upon the abutting property own ers. [5, 6] Conceding the invalidity of the amendatory ordinance of July 25, 1910, and that the original ordinance and contract provided for the paving of the street from curb to curb, with the right of the council and engineer or the street paving committee and engineer to alter and modify the plans and specifications, and the making of a subsequent contract to cover the alterations and modifications, has the city now a right to recover from the abutting property owners the assessment made upon them to pay for the improvement? It has been held in a long line of adjudications that the power to require an abutting property owner to pay the costs of street improvements is derived from the statutes which govern the subject, and until recently it was held in this jurisdiction, that, to enable a city council to enforce the collection of an assessment for street improvements, it must have, as a condition precedent, proceeded in absolute conformity to the statutes giving it power for erty bound therefor by suit in equity, and no "And payment may be enforced upon the properror in the proceeding of the board of council shall exempt from payment or defeat said lien after the work has been done as required by courts in which said suits may be pending shall ordinance; but the board of council or the make all corrections, rules and orders, to do justice to all parties concerned; and if such improvements be made as required by ordinance, without the right to enforce it against the propin no event shall the city be liable therefor erty receiving the benefit thereof." Section 3573 provides as follows: on streets, stating that the work has been done according to contract, and said city engineer shall apportion the cost of said improvement against the lots or grounds abutting or bordering the improvement," etc. Since the enactment of the present provisions of the charters of cities of the fourth class, when an ordinance is enacted or a contract entered into for the construction of a street in a city of that class, it is done in contemplation of the provisions and requirements of the statutes supra, and other provisions of the charter. Since that time a different rule has been held as regards ordinances and contracts for street improvements. The legislative authority has, by statutes, changed the rule adhered to in cases before the adoption of these statutes. Section 3576, Ky. St., provides that liens upon the property for street improvements shall not be defeated or postponed by any judicial sale, or by any mistake in the description of the property, or in the name or names of the owners thereof. statutes seem to have intended to empower the cities of the fourth class to cause streets The present property, and to require such property to bear the costs of such construction, where they are benefited thereby, and to prevent the defeat of the enforcement of the liens for such costs, where such property is equitably entitled to bear a portion of the burdens, on account of any mistake or error of the council in its proceedings. In the case at bar, if the ordinance had provided at the first for the paving of the street, except the portion occupied by the tracks of the railroad, and the setting of the concrete "headers," as was done by contract after the original contract had been made and changed, at the cost of the abutting property, no valid objection could have been made by the owners of the property. The property received the benefits of the improvement to the extent it was made, and, it seems, is equitably entitled to bear the cost of it. The defense that the work was not done according to the contract will not defeat the lien, for two reasons, one of which appears to have been in accordance with the contract, and the other is that the city accepted the work as having been done in accordance with the contract, and it is made the duty of the court trying the case to make such orders and to correct such errors as will result in justice to all parties concerned. In the absence of fraud or collusion between the council and the contractors, the acceptance of the work by the council as having been done in accordance with the ordinance and contract is conclusive upon the property owner. Joyes, etc., v. Shadburn, 13 S. W. 361, 11 Ky. Law Rep. 892; Creekmore v. Central Construction Co., 157 Ky. 336, 163 S. W. 194; Nevin v. Roach, 86 Ky. 494, 5 S. W. 546, 9 Ky. Law Rep. 819; Lovelace v. Little, 147 Ky. 137, 143 S. W. 1031. There is no charge of fraud or collusion upon the part of any one in the case at bar. Gleason v. Barnett, 106 Ky. 125, 50 S. W. 67, 20 Ky. Law Rep. 1694, Orth v. Park, 117 Ky. 779, 79 S. W. 206, 25 Ky. Law Rep. 1910, 80 S. W. 1108, 81 S. W. 251, 26 Ky. Law Rep. 184, 342, and Lindenberger Land Co. v. Park, 85 S. W. 213, 27 Ky. Law Rep. 437, were cases construing a section of the charters of cities of the first class, and Lindsey v. Brawner, 97 S. W. 1, 29 Ky. Law Rep. 1240, construed a provision in the charter of cities of the third class, both of which are similar to the provision cited in section 3567 of cities of the fourth class, and the conclusion arrived at in those opinions supports the conclusion arrived at here. In the Lindenberger Land Co. v. Park, supra, this court said: "The former rule existing under previous statutes on this subject has been modified so as to allow a just and reasonable execution of the ed to defeat wholly the claim of the contractor work. Technical objections formerly interposwho had done the work are now made to yield by the more just provision of the statute that the court may adjust the rights of the parties if there is some variance, yet is a substantial after the completion and acceptance of the work compliance with the ordinance and contract." There is no reason why the same rule should not apply to contracts for street improvements in cities of the fourth class. As the authorities of the appellant city were proceeding within the terms of the ordinance and contract, it is immaterial whether the property owners protested against the manner of doing the work or not. [7] The appellees have no valid claim for relief on account of the putting in of the concrete "headers," as, in the discretion of the authorities, they were necessary and a proper thing to be done, and did not add to the burdens of the abutting property, since it was relieved from the payment of the costs of improving the portion of the street which was occupied by the railroad tracks, and which cost was largely more than the cost of the "headers," which were necessarily put in when the city authorities were not able to secure a temporary removal of the tracks so as to enable the street to be constructed, and determined not to pave that portion of the street which was occupied by the railroad tracks. Lindsey v. Brawner, supra; Orth v. Park, 117 Ky. 779, 79 S. W. 206, 25 Ky. Law Rep. 1910, 80 S. W. 1108, 81 S. W. 251, 26 Ky. Law Rep. 184, 342; Barber Asphalt Co. v. Gaar, 115 Ky. 334, 73 S. W. 1106, 24 Ky. Law Rep. 2233; Schuster v. Barber Asphalt Co., 74 S. W. 226, 24 Ky. Law Rep. 2346. It is therefore ordered that the judgments appealed from be reversed, and this cause is remanded for proceedings consistent with this opinion. COMMONWEALTH v. WHITE. (Court of Appeals of Kentucky. Nov. 4, 1915.) 1. INTOXICATING LIQUORS 1122, New, vol. 20 Key-No. Series-CONTROL OF SHIPMENT INTERSTATE COMMERCE. G. Duncan Milliken and John B. Grider, both of Bowling Green, and James Garnett, Atty. Gen., for the Commonwealth. Maxwell & Ramsey and Joseph Graydon, all of Cincinnati, Ohio, and Sims, Rodes & Sims, of Bowling Green, for appellee. The Webb-Kenyon Act (Act Cong. March 1, 1913, c. 90, 37 Stat. 699 [U. S. Comp. St. 1913, § 87391), which divests shipments of intoxicating liquor of their interstate character in certain cases, applies only where the shipments are "intended, by any person interested therein, to be received, possessed, sold or in any in violation of any law of such state" into which the liquors are shipped. 2. COMMERCE 8-INTOXICATING LIQUORS-pany in which was kept a record of all shipPOWER TO CONTROL SHIPMENTS. manner used * * Shipments of intoxicating liquor are all under the interstate commerce clause of the federal Constitution (article 1, § 8, cl. 3), saving those expressly excepted by the Webb-Kenyon Act, which prohibits only shipments intended to be used in violation of law, so that no state regulation of interstate shipments is valid unless the shipment to which it applies falls specifically within the Webb-Kenyon Act. [Ed. Note. For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. 8.] 3. INTOXICATING LIQUORS 139-REGULATION OF SALE. Ky. St. 1915, § 2569 et seq., prohibiting the sale or possession of intoxicating liquors in local option districts, does not prohibit all shipments of liquor, so that one may lawfully have liquor purchased where its sale is lawful. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 149; Dec. Dig. 139.] 4. INTOXICATING LIQUORS 224-CONTROL OF SHIPMENT-PRESUMPTIONS. The protection of the commerce clause of the Constitution of the United States still attaches to lawful shipments of liquor, and the courts will not presume, in the absence of proof, that a record of interstate liquor shipments kept by the defendant as required by Ky. St. 1915, $ 2569b, subsec. 3, contains a record of an unlawful shipment. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 275-281; Dec. Dig. 224.] 5. COMMERCE 8 CONFLICTING REGULATIONS-CARRIERS-DUTY TO SHIPPERS. Where interstate shipments of intoxicating liquor are for lawful use, the carrier cannot divulge information of them to private persons, since the Mann-Elkins Act (Act Cong. June 18, 1910, c. 309. § 12, 36 Stat. 553 [U. S. Comp. St. 1913, § 8583, subd. 61), prohibits giving such information, and Ky. St. 1915, § 2569b, subsec. 3, making refusal or failure to divulge such information unlawful, cannot apply to lawful interstate shipments, since the state law must give way to the law of the United States. [Ed. Note. For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. 8.] MILLER, C. J. The appellee, J. M. White, was tried and acquitted of the offense of unlawfully refusing, neglecting, and failing to keep open to public inspection during business hours of the Adams Express Company, in Bowling Green, Ky., the book of that com ments of intoxicating liquors shipped into Warren county, within which territory the sale of intoxicating liquors for beverage purposes was prohibited by law. Under the stipulation of facts, it appeared that the company maintained a local office in the city of Bowling Green, and that in said city the sale of intoxicating liquors for bev erage purposes was prohibited by law; that the appellee, White, was the local agent at Bowling Green of the Adams Express Company, and the manager of its local office; that in said local office White, as agent and manager, kept two separate books, in which was entered immediately upon receipt thereof truthful statements of the quantity and kind of liquors received, with the name and address of the consignor and the name and address of the consignee, the purpose for which said liquor was intended to be used as stated on the outside of the package containing such liquor, the date when received, and the date when delivered, and by whom and to whom delivered, and with a blank space in said book in which the consignee, by himself or agent, was required to sign his true name, before said liquor was delivered to him or his agent; and that said book was open to public inspection, during the business hours of said company. It was further stipulated that only shipments of liquor from points within the state of Kentucky to the city of Bowling Green were entered in one of the books and in the manner above referred to, and that no interstate shipments of liquor-that is to say, no shipments of liquor by the company from places without the state of Kentucky into the state of Kentucky, and consigned to persons or consignees at Bowling Green-were Warren entered in the book of intrastate shipments, but that the company kept another and different book which showed all such interstate shipments of liquor from places without the state of Kentucky to Bowling Green, showing, in substance, the quantity and kind of said liquor, the name and address of the consignor, the name and address of the consignee; the fact whether or not the package containing said liquor was marked for the personal use solely of the consignee, the date when received and delivered, and by whom J. M. White was acquitted of the offense of unlawfully refusing, neglecting, and failing to keep open to public inspection during business hours the book of the Adams Express Company in which was kept a record of all shipments of intoxicating liquors received by them within territory in which the sale of intoxicating liquors for beverage purposes was prohibited by law, and the Commonwealth appeals. Affirmed. |