128 Ky. 673 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirming.
On. April 26, 1906, the city council of Maysville passed an ordinance for constructing with brick Second street from the west margin of Wall to the east margin of Market street; and Third street from the west margin of Wall to the east margin of Bridge street, at the exclusive cost of the owners of the lots and parts of lots or land fronting or abutting or bordering thereon, pursuant to section 3572, Ky. St. 1903. The language of the ordinance describing the property that should bear the cost of the improvement is identical with the language of the statute. The tax levied by the ordinance was the tax it was empowered to levy by the section of the statute.. After the completion of the streets, the city council proceeded to apportion the cost thereof. The statute and the ordinance under which the streets were constructed both commanded the city council to apportion the cost of the streets to the owners of lots and parts of lots or land “fronting
It is not alleged or claimed that appellee is the owner of any property, except the street railroad located in and running longitudinally over the surface of the streets improved. A discussion of the questions involved on'this appeal necessitates a consideration on our part of certain sections and parts of sections of the Kentucky Statutes (charter of cities of the fourth class) which, in so far as pertinent to our inquiry, are as follows:
“Sec. 3564. The original construction of any street, road, alley or avenue may be made at the exclusive cost of the owners of lots in each fourth of a square, to be equally apportioned by the board of council, according to the number of square feet owned by them respectively, except that corner lots (for twenty feet front, and extending back as may be prescribed by ordinance), shall pay twenty-five per cent, more than others for such improvements. Each subdivision of territory bounded on all sides by principal streets shall be deemed a square. “When the territory con
“Sec. 3566. The cost of making sidewalks, including curbing and guttering, whether by original construction or by reconstruction, shall be apportioned to the front as owned by the parties respectively fronting said improvements, except that each corner lot shall have its sidewalk intersection included in its frontage.
“Sec. 3567. A lien shall exist for the cost of the original improvement of the public ways, market space, public square or grounds,, wharves, levees, for the construction and reconstruction of the same, to take effect from the passage of the ordinance ordering the improvement; for the apportionment and six per centum per annum interest thereon, against the respective lots or parts of lots of land fronting or abutting upon the improvement, superior to all other liens. * * * J?
“Sec. 3571. The clerk of the council shall issue' warrants against the lot-owners in favor of the contractor stating the amount due him, which shall bear interest from time of the acceptance of the work 0by the city engineer, and specifying the' name of the owner, and give a short description of the lots subject to lien. * # #”
‘ ‘ Sec. 3572. The original construction of any street’,
On this appeal it is insisted for.the city that the appellee’s franchise in the streets improved is within the description of the property which the charter above set forth requires to bear the. cost of the improvements.- If this proposition, can be maintained, it certainly will be a novel one in this State, as it has never been claimed before, so far as we know, that a franchise to operate a street railroad in a street to be improved constitutes property fronting or abutting or bordering upon it. Section 3572 prescribes the property which shall bear the burden of the original construction of any highway in cities of the fourth class.. Section 3567 gives a lien on the property liable for the improvement. Section 3572 provides that the original construction of a street may be at the “exclusive cost of the owners of the lots and parts of lots or (of) land fronting or abutting or bordering upon the grounds so improved, to be equally apportioned by
We think our conclusion as to this is strengthened by a comtemplation of section 3564, which describes the property to be taxed for the original construction of a highway under the charter of cities of the fourth class, as first enacted; section 3572 being an amendment of the act passed March 24, 1894 (Acts 1894, p. 350, c. 114, section 5). Turning now to section 3564, we find that the original construction of any street may be made at the exclusive cost of the owners of lots in each fourth of a square, “to be equally apportioned by the board of council according to the number of square feet owned by them respectively, ’ ’ etc.; and then a square is defined as a “ subdivision of territory bounded' on all sides by principal streets.” If the improvement in question had been made under the charter as originally enacted, it would not be claimed that the street car company’s franchise to use the
The city insists that some force should be given to the different words used in describing the relation of the taxed property to the improved highway; it being said that the Legislature would not have used' the words “fronting,” “abutting,” and “bordering” unless they meant something different by each of them. Giving this -argument its full force, it will be observed that the words are made to apply to improvements on several different kinds of public highways. The statute provides for the improvement by
The conclusion we have reached is still further strengthened by a consideration of the following language to be found in section 3575: “All property fronting or abutting or bordering upon said improvement belonging to the city. shall be considered and
Petition for rehearing by appellant overruled.