136 Ky. 596 | Ky. Ct. App. | 1910
Opinion op the Court by
Affirming-
This appeal raises the question as to whether or not an ordinance ordering the reconstruction of a sidewalk in a city of the second class must lie over two weeks between its passage by the board of council and the board of aldermen, under the provisions of section 3100 Ky. St. (Russell’s St. Sec. 1211), The petition alleges that the board of council, on March 2, 1908, passed an ordinance directing the reconstruction of the sidewalk on Sixteenth street between certain points, and that on March 5th, or only three days thereafter, this same ordinance was passed by the board of aldermen and approved by the mayor. A demurrer was filed to this petition and overruled. Thereupon the defendant answered, setting forth, in substance, that the ordinance directing the reconstruction of this sidewalk was not passed as required by the statute, in that two weeks did not elapse between the dates of its passage by the respective boards, and the same allegations are made to apply to the ordinance assessing the cost. In an amended answer, defendant pleaded that a sidewalk of brick had theretofore existed for a long period, and that the new sidewalk was different in plan, material, and width, though it is not alleged, for the reason, pre
Under section 3094, the entire management and control of the streets, alleys, walks, and ways of the city is lodged with the board of council and the board of aldermen. Any improvement, of whatever kind or nature, that is desired, must be ordered and directed' by this body before it may legally be done. The procedure is regulated wholly by the provisions of the Kentucky Statutes, as found in sections 3094 to 3100, inclusive. It will be noted that the general council is given exclusive control and supervision over the sidewalks, etc., with the right to repave or reconstruct or otherwise improve same. Section 3096 directs how the cost oí original construction, reconstruction, or other improvements shall be paid, and when a portion of the said cost is to be borne by the city and a portion by the property owners it specifically directs what proportion thereof shall be paid by each. Following this provision, there is an explicit direction that the cost shall be assessed as the cost of the construction of streets, with a lien upon the abutting property to satisfy the assessment. As council can only speak through an ordinance, the direction that the cost shall be assessed as the cost of construction of streets means that, when the cost is determined, the general council shall pass an ordinance assessing the cost against the abutting property. Section 3100 provides that, in the event mistakes shall be made in the ordinance fixing the cost, same may be corrected, that no injustice may be
It is common knowledge that in original construction there are many items of expense which do not have to be reckoned with in reconstruction. The Legislature evidently had this in mind, and, therefore,
Judgment affirmed.