contracts theretofore made. If the sale had been made at par, a different question would be presented, but as the sale was not made at par, the validating statute simply gives effect to the contract actually made by the parties themselves, and therefore does not impair the obligation of the contract or interfere with vested rights. We therefore conclude that the contract for the sale of the bonds at less than par is now valid, but, as before stated, the bonds will have to be dated and issued hereafter and should not be dated so that they will bear interest during the long period of time that the commencement of the work on the improvement has been delayed.

It follows that plaintiffs' prayer for an injunction should have been granted to the extent herein indicated. Judgment reversed and cause remanded for proceedings consistent with this opinion.

Whole court sitting.

Bullitt County v. Galion Iron Works and Manufacturing

1.

2.

Company.

(Decided October 21, 1921.) ·

Appeal from Bullitt Circuit Court.

Exceptions, Bill of-Extension of Time to File.-Where the bill of exceptions is not tendered within the time granted for the purpose, the court is without power thereafter to file same or grant an extension of time for the purpose; and the same will be stricken from the record in this court upon proper motion. Exceptions, Bill of-Pleading-Verdict.-With the bill of exceptions stricken the only question remaining is whether or not the pleadings support the verdict.

T. C. CARROLL, C. P. BRADBURY, J. F. COMBS and CHARLES CARROLL for appellant.

R. L. GREENE, BAGBY & HUGUELY, BEN CHAPEZE and GARNETT & VAN WINKLE for appellee.

OPINION OF THE COURT BY JUDGE CLARKE-Affirming.

On April 25th, 1916, the fiscal court of Bullitt county contracted with the Galion Iron Works and Manufacturing Company for certain road machinery, agreeing to pay therefor the sum of $6,260.00. On June 15, 1916, the

claim of the company was presented to and allowed by the fiscal court and a voucher issued for the amount of same. Thereafter the county attorney prosecuted an appeal to the Bullitt circuit court from the order of the fiscal court allowing the claim. The trial in the circuit court resulted in a judgment for the company which, upon appeal to this court, was reversed in an opinion reported in 184 Ky. 805, 213 S. W. 200. Complying with that opinion the county attorney upon return of the case to the circuit court filed a petition alleging facts to show that the debt was illegal because at the time of its creation the court had already expended more than its income for that year. By answer the appellee traversed the material allegations of the petition and in addition specifically denied the validity of many items of expense set out in a statement alleged to have been filed as a part of the petition but which is not in the record. Thereupon the court upon its own motion appointed a commissioner to report fully upon the resources and liabilities of the county throughout the involved period. To this report the company filed exceptions attacking the validity of a sufficient number of the items of expenditures reported to show that the indebtedness of the appellee was legal if these objections should be sustained. Upon the issues thus joined the case went to trial before the court and much evidence was introduced.

The court in its judgment dismissing the appeal found as a fact that Bullitt county "did on April 25, 1916, have on hand sufficient assets and revenues collected and available to pay the claim and indebtedness of the appellee, the Galion Iron Works and Manufacturing Company, to-wit: $6.260.00," and it is from that judgment that this appeal is prosecuted.

Appellees have filed a motion in this court to strike from the record the bill of exceptions and transcript of evidence. The judgment was entered at the April, 1921, term of the Bullitt circuit court and appellant was given until the third day of the August term to prepare and present its bill of exceptions. The bill of exceptions was not presented on or before the third day of the August term nor was an extension of time for filing same asked or granted. On the 8th day of the term appellant presented its bill of exceptions and appellees objected to the filing of same, which objection was overruled and the bill ordered filed, to which appellees excepted.

Construing section 334 of the Civil Code this court has uniformly held that the bill must be tendered within the time allowed, unless before the expiration of that time an extension is granted by the court; and that the court is without authority after the expiration of the time granted to extend the time or permit the bill to be filed. L. & N. R. R. Co. v. Turner, 81 Ky. 489, 5 R. 542; Nave v. Riley, 146 Ky. 276, 142 S. W. 388; City of Catlettsburg v. May, 140 Ky. 367, 131 S. W. 15.

On the eighth day of the term when the bill of exceptions was tendered and filed the court caused the following order to be entered:

"On the second day of the present term the official stenographer reported to the court that her bill of evidence was complete and ready to be filed except being bound, and requested permission of the court to send it to a binder for that purpose, and was granted, but by oversight the court's attention was not called to the time given in which to file the bill of evidence and no order was entered extending the time of filing."

It is manifest that this order of the court does not help the matter in the least, since it but recites the fact that the bill of evidence was not tendered within the time originally allowed and that there had been no order extending the time for filing, which facts, as we have seen, left the court without power or authority to file same. It therefore results that the motion to strike the bill of exceptions from the record must be and it is sustained.

With the transcript of evidence stricken from the record the only remaining question is, are the pleadings sufficient to support the verdict? Nave v. Riley, supra. That they are amply sufficient for that purpose is clear from the references heretofore made to same.

1.

Wherefore, the judgment is affirmed.

Privette, et al. v. Shirley, et al.

(Decided November 18, 1921.)

Appeal from Metcalfe Circuit Court.

Municipal Corporations-Vacancy on Board of Trustees-How Filled. By the provisions of section 3692, Ky. Statutes, a vacancy in the entire board of trustees in a town of the sixth class may be filled by the county court, and pursuant to section 1058, Ky. Statutes, this may be done at a special term of the court,

2.

3.

Municipal Corporations-Sidewalks.-A contract for the construction of sidewalks in cities of the sixth class is not required to be let by the board of trustees upon competitive bidding.

Municipal Corporations-Lien on Abutting Property-Interest.— The court did not err in allowing interest on the amount of the lien on abutting property from the date construction of the sidewalk was completed, accepted and paid for by the board of trustees.

W. S. SMITH for appellant.

BASIL RICHARDSON, V. H. BAIRD and J. W. KINNAIRD for appellees.

OPINION OF THE COURT BY JUDGE CLARKE-Affirming.

The appellees, claiming to act as trustees of Edmonton, a town of the sixth class, by ordinance, ordered certain property owners, including appellants, to construct concrete sidewalks not less than four feet in width in front of their properties on or before November 1, 1917. Appellants failed and refused to construct the sidewalk in front of their property as ordered, whereupon appellees on December 5, 1917, contracted with one, Paul VanZant, to construct same, which he did. The minutes of the board of trustees with reference to the contract with VanZant for this work are as follows:

"At a call meeting of the board of the trustees of the town of Edmonton, Kentucky, on December 5, 1917, the following councilmen were present: Dr. W. P. Bushong, V. D. Mann, U. S. Shirley, P. P. Mitchell and Joe F. Leftwich,

"There being a full council sitting they proceeded to business as follows:

"Pursuant to an order duly advertised in the Edmonton News for the sealed bids for the construction of a cement sidewalk in front of the residence of Mrs. T. H. Privette on the Edmonton and Glasgow road for a distance of 263 feet, came Paul VanZant and others with bids, the bid of Paul VanZant being one hundred and sixty dollars ($160.00) and the lowest bid, said contract was awarded to him.

"The vote was unanimous.

"There being no further business before the council, they adjourned upon motion.

"Dr. P. W. Bushong, Chmn.

"C. Haskell Miller, Clerk."

On May 5, 1918, the following order was entered:

"A motion was made by councilman U. S. Shirley and seconded by councilman Joe F. Leftwich to accept the walk constructed by Paul VanZant in front of the residence of Mrs. T. H. Privette and to pay said Paul VanZant $160.00 as per contract for constructing same.

"The vote was unanimous."

Thereafter, appellees as trustees of the city of Edmonton instituted this action to enforce a lien for $160.00 with interest from May 5, 1918, against the property of appellants upon which said sidewalk abutted. Appellants by answer traversed all of the allegations of the petition except that their property was located in the town of Edmonton. A trial resulted in a judgment for plaintiffs and defendants have appealed.

The first ground upon which a reversal is asked is that appellees were not legally appointed to act as trustees of the town of Edmonton and that as a consequence everything done by them with reference to the construction of the sidewalk is illegal and void. For appellees it is insisted, first, that their appointment as trustees was regular and legal, and second, that even if this is not true, they were at least de facto officers.

It will not be necessary to consider this latter contention since we are clearly of the opinion that appellees were legally appointed. No trustees had been elected at the election previous to June 12, 1917, and there was a vacancy in the entire board when appellees were appointed as such by the county court of Metcalfe county at a special term. Section 3692 of the Kentucky Statutes provides:

"If from failure to elect at the time fixed by law or other cause there shall be a vacancy in the entire board of trustees, then the county court of the county shall have power to appoint five trustees, who shall hold their office until the next regular election."

This section of the statutes does not provide that the appointment shall be made at a regular term of the county court. Section 1058 of the statutes provides that:

"Special term of county courts may be held at any time for the transaction of any business except the probating of a will, or granting tavern, liquor or druggist license."

As the power conferred by section 3692 is not within the exceptions of section 1058, it is clear that power was legally exercised at a special term called for the purpose,