Fidelity Trust Safety-Vault Co. v. Voris' Ex'rs do not front upon it, and that as the cost of maintaining the street in front of them, as well as part of the cost of maintaining Fourth street and Brandeis avenue, falls upon them, if they can also be assessed for the improvement to New Third street they may be assessed for three streets running substantially north and south. Sections 2833, 2834. Ky. St.. are as follows: "When the improvement is the original construction of any street, road, lane, alley or avenue, such improvement shall be made at the exclusive cost of the owners of lots in each fourth of a square to be equally apportioned by the board of public works according to the number of feet owned by them respectively, and in such improvements the cost of the curbing shall constitute a part of the cost of the construction of the street or avenue and not of the sidewalk. Each sub-division of the territory bounded on all sides by principal streets shall be deemed a square. When the territory contiguous to any public way is not defined into squares by principal streets, the ordinance providing for the improvement of such public ways shall state the depth on both sides fronting said improvement to be assessed for the cost of making the same according to the number of square feet owned by the parties respectively within the depth as set out in the ordinance. "A lien shall exist for the costs of original improvement of public ways for the apportionment and interest thereon at the rate of six per cent. per annum against the respective lots. Payments may be enforced upon the property bound therefor by proceedings in court; and 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 court in which suits may be pending, shall make all corrections, rules or orders to do justice to all parties concerned; and in no event if such improvement be made as 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.” * * * * * * It will be observed that each subdivision of the territory bounded on all sides by principal streets is to be deemed a square, and that the cost of the improvement of a street by original construction is to be apportioned in each fourth of a square equally. When the territory is divided into squares, each fourth of a square is the basis of the apportionment. When the territory is not defined into squares by principal streets, the depth on both sides fronting the improvement to be assessed for the cost of making it is to be defined by the ordinance. The statute does not authorize any property to be assessed under this power, except that "on both sides fronting said improvement." The reason of this is that the apportionment for the improvement is to be made, as expressed in the last clause of section 2834, "against the property receiving City of Augusta v. McKibben the benefit thereof." That part of the statute which makes each fourth of a square the unit, where the land is divided into squares, is clearly inconsistent with the idea that, in determining the depth on both sides which may be assessed for an improvement, the council may cross another principal street, and lay the burden on property fronting on that street, and deriving no benefit from the improvement. If the council may cross one street, it may cross two or more, and the property of the individual might thus be taken for public purposes without just compensation as provided in the constitution. We cannot presume the legislature intended any such result, and, the words of the statute not requiring such a construction, it cannot be adopted upon doubtful intendment. This court has often held that the basis of all assessments of this character is presumptive benefit received, and that an assessment which amounts to spoliation will not be enforced. Sutton's Heirs v. City of Louisville, 5 Dana, 28; Courtney v. Same, 12 Bush. 419. Preston v. Roberts, 75 Ky. 570, Stengel v. Preston, 89 Ky. 623, 13 S. W. 839, and Boone v. Nevin (Ky.) 23 S. W. 512, are relied on to sustain the judgment. The reasoning of the first case supports the conclusion we have reached in this case. We fail to see in either of the other cases anything in conflict with it. The facts of those cases, under the statute there before the court, distinguished them from this case. The city of Louisville is not a party to this appeal; neither is the Industrial School of Reform; and what their liability may be to the contractor, under the facts presented, we cannot therefore now determine. Judgment reversed, and cause remanded for a judgment pursuant to this opinion. CITY OF AUGUSTA v. MCKIBBEN et al. (Court of Appeals of Kentucky, Jan. 16, 1901.) [60 S. W. Rep. 291.] Improvement of Sidewalk-Validity of Ordinance.- Where a sidewalk was condemned, and a new one required to be laid, it was not necessary for the ordinance to prescribe the grade of the proposed sidewalk, as the grade, by necessary inference, was left as it was before. Same-Advertisement for Bids. Where the council ordered a pavement to be made within 40 days, and if not made within that time that the street committee should advertise for bids for the work for at least 10 days, the failure of the council to proceed at once upon the expiration of the 40 days did not deprive it of the right to do so thereafter. Same Same Irregularity. The failure of the committee to comply strictly with the direction to give 10 days' notice of the bidding did not invalidate the contract which the council made, as the whole matter of notice rested in its discretion, there being no statute requiring notice. Same Benefits-Apportionment of Assessment.*-The benefits to *See Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. Rep. 187, 43 L. Ed. 443; French v. Barber Asphalt Pav. Co., and note, ante, p. 1. City of Augusta v. McKibben abutting property from the construction of a sidewalk will be presumed to be sufficient to authorize an apportionment at five cents a square foot, amounting to $38.70, nothing else appearing. Appeal from circuit court, Bracken county. "Not to be officially reported." Action by the city of Augusta against S. W. McKibben and others to enforce a lien for the cost of a street improvement. Judgment for defendants, and plaintiff appeals. Reversed. M. J. Hennessey, for appellant. HOBSON, J. The city of Augusta filed this action in the court below to enforce a lien on appellee's property for $38.70, the amount assessed against it in an apportionment of the cost of a sidewalk built on the street fronting it in that city. The court below sustained a general demurrer to the petition. The statute governing cities of the fifth class, which includes Augusta, provides, among other things, as follows: "The city council is hereby authorized and empowered to order any work they deem necessary to be done upon the sidewalks, curbing, sewers, streets, avenues, highways and public places of such city. The cost and expense incurred in constructing or repairing streets, avenues, highways, sewers and public places shall be paid out of the general fund of the city. The expense incurred in making and repairing sidewalks and curbing shall be paid by the owners of land fronting and abutting thereon, each lot or portion of a lot being separately assessed for the full value thereof in proportion to the frontage thereof to the entire length of the whole improvement, not exceeding a square, sufficient to cover the total expense of the work; but the owners of such property shall have the right to make such improvement if they preferred doing so instead of paying for same. Whenever any expense or cost of work shall have been assessed on any lands as herein provided, the amount of said expense shall become a lien upon said lands which shall take precedence of all other liens, and which may be enforced by the contractor or city in accordance with the provisions of the Code of Practice." Ky. St. 3643. On December 14, 1894. the city council adopted a general ordinance regulating the making of sidewalks. On May 12, 1899, after receiving reports from its street committee condemning the existing sidewalks, and recommending the making of a new one in the place of it in front of certain lots, including appellees', the council made an order directing the pavements to be made of brick within the next 40 days. Due notice of this order was given. On June 9, 1899, they ordered the street commissioner to report, among other things, the lots where the pavement had not been built as directed. On July 3d they extended the time 40 days for the property owners to build the pavements. On September 13th they again made an order that the pavement should be made within 40 days, City of Augusta v. McKibben and, if not made within that time, for the street committee to advertise for bids for the work for at least 10 days. Appellees still refusing to obey the orders of the council, on November 29th advertisement was made to the effect that up to 6 p. m. on Friday, December 8, 1899, sealed bids would be received by the committee, and at a meeting of the council on that night it accepted the lowest bid made. The contractor gave bond and did the work at five cents a foot. The council apportioned the amount among the property owners, and, appellees still refusing to pay their apportionment of $38.70, this suit was filed. It is contended for the appellees that the demurrer to the petition was properly sustained, because the ordinance does not prescribe the grade of the proposed sidewalk, and Hydes v. Joves, 4 Bush. 464, is relied on. In that case the city council authorized the city engineer to fix the grade of the street in the ordinance requiring the work to be done instead of fixing it themselves. The case before us is wholly different. The old sidewalk was condemned, and a new one was required to be laid. This is all the ordinance or contract provided for. The grade of the street was, by necessary inference, left as it was before. That which is necessarily implied need not be expressed, there being no statute regulating the subject. It is also insisted that, because the council did not proceed at the end of the 40 days allowed by the ordinance of September 13th, it was erroneous for them to proceed afterwards. There was no statute regulating the subject. It was left to the discretion of the council how and when they should proceed in this matter, and, if they saw fit to wait and give appellees further time to reconsider and comply with the order, we are unable to see what ground of complaint the appellees, at least, can have. The contract was let on December 8th. The advertisement for the bids was made on November 29th, and, under the rulings of this court, both days cannot be counted. and so there was only 9 days' notice of the bidding given. If the statute had required 10 days' notice, to be given this would be a very serious objection to the proceeding, but there is no such provision in the statute. The only thing in the record is a direction by the council to its committee to advertise 10 days. The failure of the committee to comply strictly with this direction does not invalidate the contract which the council saw fit to make itself, for the whole matter of the notice to be given rested in its discretion. It is also earnestly argued that under the decision in Village of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, the apportionment sued on cannot be enforced. We are wholly at a loss to see anything in this case to bring it within the decision in that case, which must be read in connection with the previous decisions of the court, notably Walston v. Nevin, 128 U. S. 578, 9 Sup. Ct. 192, 32 L. Ed. 544, where, in an opinion by Chief Justice Fuller, the Ken City of Louisville v. Gosnell tucky statute is expressly sustained. Cities cannot exist without sidewalks. By common consent, so far as we have seen, sidewalks are universally constructed at the cost of the adjoining property owner; and if an apportionment for a sidewalk at five cents a square foot, amounting to $38.70, cannot be enforced, nothing else appearing, the universally admitted doctrine of legislative discretion as to the mode of apportioning burdens of this description, and of presumptive benefits, however apparent, must be abandoned. Judgment reversed, and cause remanded, with directions to the court below to overrule the demurrer to the petition, and for further proceedings not inconsistent with this opinion. CITY OF LOUISVILLE v. GOSNELL et al. (Court of Appeals of Kentucky, March 20, 1901.) [61 S. W. Rep. 476.] Appropriation for Street Repairs -Part of Contract Price to Cover Future Repairs.-Under Ky. St. § 2820, providing that the executive boards of cities of the first class and their officers shall not have power to bind the city to any extent beyond the amount of money at the time "already appropriated" by ordinance for the purpose of the department under the control of said board, where a part of the contract price of the original construction of a street was intended to cover future repairs the contractor was entitled to recover of the city that part of the price to be paid out of the appropriation for street repairs, no more specific appropriation being necessary. Contract Creating Debt in Excess of Income*-Pleading. To invalidate a contract by a city on the ground that it creates an indebtedness in excess of the income and revenue provided for the year, in violation of Const. 157, the facts showing that such is the effect of the contract must be alleged. "Not to be officially reported." Petition for modification of opinion. Granted. DU RELLE, J. On a former appeal of this case, under the style of Fehler v. Gosnell, 99 Ky. 394, 35 S. W. 1125, the city of Louisville was not a party. After the return of the case the city was made a party, and judgment sought against it for 10 per cent. of the amount of the apportionment warrants sued on, as not being for original construction of streets, but for repairs. Upon a second appeal of the case, under the style of Gosnell v. City of Louisville, 46 S. W. 722, it was held that a cause of action was stated against the city upon that claim. After the second appeal, the city filed its answer, to which a demurrer was sustained, and the correctness of that decision is now before us. In the opinion upon the second appeal we held "that the city has authority to contract with regard to street repairs, and. *See note on "Municipal Indebtedness,” 5 Mun. Corp. Cas. 725. |