Weber v. Knepfle

Opinion op the Court bt Judge Turner. Affirming. Appellee, a contractor, brought this action against appellant to subject certain property owned by him on Kairfield Avenue, Bellevue, Ky., a city of the fourth class, to the payment of certain street assessment warrants issued for the reconstruction of curbing and guttering in front of appellant’s property. The ordinance under which the work was done directed a reconstruction of the carriage way of the street and of the curbing and guttering but no sidewalk is provided for; it further provides that the reconstruction work of the carriage way shall be done at the cost .of the city, but that the cost of the curbing and guttering shall be assessed against the. owners of the abutting property. Section 3565, Kentucky Statutes, being a part of the charter of cities of the fourth class, provides: “The cost of reconstructing public ways,- streets or alleys, or repairing of the same, and the cost of making footway crossings, shall be borne exclusively by the city.” And section 3566 of the same charter provides: “The cost of making sidewalks, including curbing and guttering, whether by original construction or by reconstruction, shall be apportioned to the front foot as owned by the parties respectively fronting said improvements, except that each corner lot shall have its sidewalk intersection included in its frontage.’’ Under these two sections as construed together it is the contention of appellant that inasmuch as a reconstruction of the carriage way must, under the terms of the •charter, be paid for by the city, and under the ordinance providing for the improvement the reconstruction of the curbing and guttering was only incidental to the reconstruction of the carriage way, that the whole improve [230] ment shall be paid for by the city. In other words that the reconstruction of the curbing and guttering is a part of the reconstruction of the carriage way under the ordinance, and is therefore, under the terms of the charter, payable by the city and not by the property holders. He relies upon the cases of the City of Louisville v. Tyler, 11 Ky., 588, and Gokche v. Staebler, 141 Ky., 66, as sustaining this view. Each of those cases involved an interpretation of the charter of cities .of the first class somewhat similar to the provisions of the charter herein involved; but there was in addition to these provisions a further amendatory provision in first class charters that im original construction of streets, lanes, and alleys, the cost of the curbing shall constitute a part of the cost of the street and not of the sidewalk. In the Tyler case the question primarily was whether the improvement was original or reconstruction, and the court did hold that the cost of the curbing in that case should be paid for by the city whether it was original or reconstruction. But this court in the case of City of Louisville v. Stoll, 159 Ky., 138, overruled the Tyler case and necessarily the reference to the Tyler case in Gokche v. Staebler, 141 Ky., 66, was overruled. The ordinance in the case at bar distinctly separated the carriage way improvement and the curbing and guttering improvement, and provided that the one should be paid for by the city and the other by the property holders, as seems to have been unmistakably contemplated by the provisions of the charter quoted. The mere fact that in a single ordinance the council provided for the reconstruction of the carriage way and for the reconstruction of the curbing and guttering, does not make the latter a part of the former. It must be given the same effect as if the two improvements had been provided for in separate and distinct ordinances. The contention that the improvement of the carriage way was of an unusual character and not for ordinary purposes, and that the cost thereof must therefore be borne exclusively by the city can have no bearing upon the liability of the appellant’s property for the payment of the curbing and guttering improvement; for the ordinance properly required that the reconstruction of the carriage way should be paid for by the city, and separates the curbing and guttering improvement from the improvement of the carriage way. [231] Under the charter appellant’s property was liable for the curbing and guttering improvement and the court properly so adjudged. Judgment affirmed.