7 S.W.2d 1042 | Ky. Ct. App. | 1928
Reversing.
In 1922, the appellant, city of Princeton, pursuant to the authority vested in it by section 3563 of the Kentucky Statutes, adopted an ordinance governing the apportionment of the cost of the original construction of such streets as might thereafter be made. That ordinance by section I provided that for a period of 10 years after its adoption all original street construction in the city should be paid for by the abutting property owners on each side of the street, paying one-fourth of the cost and the city the remaining half. In 1928 the city adopted an ordinance providing for the original construction of a number of streets therein set out, and providing that the cost of construction of these streets, save the intersections, should be borne entirely by the abutting property owners. The appellee, an abutting owner on one of the streets proposed to be constructed by this ordinance, thereupon brought this action to enjoin the city from proceeding under the ordinance, or at all events from apportioning the cost of the construction other than as provided in the 1922 ordinance. On final hearing the court adjudged that the city could not apportion the cost of the construction of the streets set out in the 1928 ordinance other than as is provided in the 1922 ordinance, and from that judgment the city has appealed.
Section 3563 of the Statutes provides that the board of council of any city of the fourth class (of which the appellant is one) may provide by general ordinance that such city shall pay part, and, if so, what part of the cost of the improvement of streets, and that, when such provision is made, it shall be uniform, and shall thereafter apply to the improvements of all streets in the city, and may not thereafter be changed or repealed, except at intervals of 10 years or more. In the case of Board of Councilmen of the City of Frankfort v. Morris,
We are of the opinion that, in order to fix any rights growing out of the adoption of a general ordinance providing for the apportionment of the cost of the construction of streets, the city must do work or let contracts under such circumstances as would entitle it to apportion the cost against the abutting property owner whether the latter was willing to pay it or not. This, of course, means that the work done or contracts let must be in accordance with the statutory requirements governing the same. Without the compliance with such statutory requirements, no apportionment could be made against the abutting property owner, see Wait v. Southern Oil Tar Co.,
Whole court sitting.