128 Ky. 555 | Ky. Ct. App. | 1908
Reversing.
This action was instituted in the Kenton circuit court.by the appellee, Elsworth Woods, to enforce a lien against the property of appellant, James T. Thomas, for the construction of a sewer in front of his property on St. Louis street in the city of Covington. The petition sets out the passage of the ordinance and the various proceedings of the general council, and states that, by reason thereof, appellee has a lien on the property of appellant described in the petition. Appellant Thomas filed an answer in three paragraphs.. A demurrer to each of the paragraphs of the answer was sustained, and appellant then filed an amendment to the first and second paragraphs of the original answer. To these paragraphs as amended the court also sustained a demurrer. Appellant declining to plead further, the court gave judgment in favor, of appellee, and ordered a sale of appellant’s property.
The first paragraph of appellant’s answer and amendment thereto presents the defense that two weeks did not elapse between the passage of the ordinance ordering the construction of the sewer by the board of councilman and its passage by the board of aldermen, as required by section 3100 of the Kentucky Statutes, of 1903, and that, said ordinance is therefore void. Section 3100 of the Kentucky Statutes for 1903 is as follows: “No error in the proceedings of the general council shall exempt from payment, after the work has been done, as required by either the ordi-' nance or contract; but the general council or the courts in which suits may be pending shall make all
Counsel for appellee earnestly insists that the word “original” indicates that there may be a construction, and subsequently a reconstruction of the sewer; that, while the statute provides for the construction.of sewers, no provision is made for their reconstruction; that, after the sewer has been once constructed, it is
But it is argued that the failure to let two weeks elapse between the' passage of the ordinance in the two boards of the- council is simply an error in the proceedings of the council,, and does not exempt from payment after the work has been done. It will be observed, however, that the provision to the effect that “no error in the proceedings of the general council shall exempt.from payment,■ after the work has been done, as - required by either the ordinance or contract,”- is immediately- followed by this
The correct interpretation of section 3100, Ky. Stats., 1903, may be found in Richardson, etc., v. Mahler, etc., 111 Ky. 408, 63 S. W. 957, 23 Ky. Law Rep. 917, where a similar provision contained in the
. For the reasons given, the judgment is reversed and eause remanded, with directions to dismiss the petition.