Thomas v. Woods

• Decision Date: 25 March 1908
• Citation: 108 S.W. 878,128 Ky. 555
• Parties: THOMAS v. WOODS.
• Court: Kentucky Court of Appeals

108 S.W. 878

128 Ky. 555

THOMAS v. WOODS.

Court of Appeals of Kentucky.

March 25, 1908

Appeal from Circuit Court, Kenton County.

"To be officially reported."

Action by Elsworth Woods against James T. Thomas. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to dismiss.

Orlando P. Schmidt, for appellant.

Orie S Ware, for appellee.

CLAY C.

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 councilmen 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 ordinance or contract but the general council or the courts in which suits may be pending shall make all corrections, rules and orders to do justice to all parties concerned; and in no event, if such improvement be made as is provided for, either by ordinance or contract, shall the city be liable for such improvement without the right to enforce it against the property receiving the benefit thereof; but no ordinance for any original improvement mentioned in this act shall pass both boards of the general council at the same meeting, and at least two weeks shall elapse between the passage of any such ordinance from one board to the other." Counsel for appellee insists that this provision is not available as a defense to this action for two reasons: (1) A sewer is not an original improvement. (2) Any defect in the ordinance is simply an error in the proceedings of the general council which cannot exempt from payment, inasmuch as the work has been done as required by the ordinance or contract. As to what are local improvements, as well as the general rule relating thereto, is well stated by Abbott in his work on Municipal Corporations (volume 1, p. 794) in the following language: "On the contrary, the opening, paving, or macadamizing, grading, curbing, and guttering or general improvement of streets and highways, the running of water pipes and mains, or placing of hydrants, construction of viaducts, local sewers, ditches, or drains, or the running of sewer pipes, the construction or repair of sidewalks, the establishment of parkways, public grounds or parks, the construction of safe harbors, landings, wharves, and docks have each been considered local improvements of such a character that the cost of their construction or making should be assessed against the property benefited in proportion to the benefits received. The general rule in regard to the construction of all the improvements noted above in the absence of special charter or statutory provisions is that the original cost of such improvement must be borne by local assessments levied upon property benefited. After such original construction the cost, of making the usual and necessary repairs must, however, be paid from the general corporate funds or revenues." In the case of State v. Reis, 38 Minn. 371, 38 N.W. 97, the court in defining an improvement uses the following language: "The only essential elements of a 'local improvement' are those which the term itself implies, viz., that it shall benefit the property on which the cost is assessed in a manner local in its nature, and not enjoyed by property generally in the city. If it does this, rendering the property more attractive and...