Abstracts Appeal from circuit court, Jefferson county, law and equity division. "Not to be officially reported." Action by George W. Gosnell and another against Thomas McAboy to enforce a lien for the cost of a street improvement. Judgment for plaintiffs, and defendant appeals. Reversed. O. H. Harrison, for appellant. William Furlong, for appellees. DU RELLE, J. This is an appeal from a judgment of the Jefferson circuit court adjudging appellees a lien upon the lot of land of appellant for the payment of an apportionment warrant for the improvement of an alley. A general demurrer to the petition was filed, and, without argument, overruled. Several questions presented by the argument in this court have been already passed upon in the case of Richardson v. Mehler (recently decided) 63 S. W. 957,-that the ordinance is void; that section 2838, Ky. St., is unconstitutional, because special or local legislation; and that the contract under which the work was done was void because of the ordinance requiring a $100 license as a prerequisite to the consideration of the bid made by any bidder. But the petition appears to be fatally defective in a number of respects. There is no sufficient averment of the contract, or of what was thereby undertaken to be done. There is no proper averment of the notice of inspection of the work done, or of the inspection thereunder. In a number of other respects the petition, if not actually defective, is exceedingly vague. Nor is there a proper attestation of the supposed copies of the contract, ordinance, and apportionment. These matters, however, it is not necessary to consider, as the judgment must be reversed, and the cause remanded, with directions to set aside the judgment and sustain the demurrer to the petition, and for further proceedings consistent herewith. City of Louisville v. Tyler. (Court of Appeals of Kentucky, Nov. 20, 1901.) [65 S. W. Rep. 125.] Local Assessments-Cost of Curbing as Part of Reconstruction of Carriageway. Ky. St. 2835, providing that "the cost of making sidewalks, including curbing, whether by original construction or reconstruction, shall be apportioned to the front feet as owned by the parties, respectively, fronting said improvement, except that each corner lot will pay the cost of its sidewalk intersection," applies only when a sidewalk, including curbing, is either constructed or reconstructed; and therefore, where no construction of sidewalk is provided for, but the ordinance and contract provide for an improvement of the carriageway "by grading, curbing, and paving," the curbing is a part of the improvement of the carriageway, and, if the work is reconstruction, must be done at the cost of the city. "To be officially reported.' Petition for rehearing. Denied. For former report, see 64 S. W. 415. Abstracts DU RELLE, J. A new question is presented by petition for rehearing. By the act for the government of cities of the first class (section 2835, Ky. St.) it is provided: "The cost of making sidewalks, including curbing, whether by original construction or reconstruction, shall be apportioned to the front feet as owned by the parties, respectively, fronting said improvement, except that each corner lot will pay the cost of its sidewalk intersection." The ordinance and contract under which the improvement sued for in this case was made included curbing, and it is therefore insisted on behalf of the city that the judgment must be reversed as to the cost of the curbing, although, as decided by the court, the work was work of reconstruction. There is some apparent conflict between the section quoted and section 2833, the latter part of which was introduced for the first time in the act of March 19, 1898: "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." It therefore appears that, at least since the adoption of the new act, it was not by the legislature considered essential that curbing should be regarded as part of the sidewalk, nor that it must invariably be apportioned in proportion to the number of front feet of the abutting property, for the new section requires that, when laid down in connection with the original construction of a street, it shall be treated as a part of the cost of the roadway, and apportioned in proportion to the number of square feet in the quarter squares adjacent to the improvement; and, independently of the legislative construction by the act of 1898, the court has reached the conclusion that section 2835 applies only when a sidewalk, including curbing, is either constructed or reconstructed; and that where, as in the case at bar, there is no construction of sidewalk provided for, but the ordinance and contract provide for an improvement of the carriageway "by grading, curbing, and paving." etc., the curbing is a part of the improvement of the carriageway, and, if the work is reconstruction, must be done at the cost of the city. The petition is therefore overruled. This response applies also to the petition in the case of Railroad Co. v. Nehan (Ky.) 64 S. W. 457. Eureka Hill Min. Co. v. City of Eureka. Taxation-Situs of Proceeds of Mine Partly within City.-The net proceeds of a mine are taxable at the place where the ores are taken Abstracts to the surface through the main workings, and, being personal property, should be taxed as other personalty. (Syllabus by the Court.) Appeal from district court, Juab county; E. V. Higgins, Judge. Action by the Eureka Hill Mining Company against the city of Eureka. Judgment for defendant, and plaintiff appeals. Affirmed. Bennett, Harkness, Howat, Sutherland & Van Cott, for appellant. N. A. Robertson, for respondent. BASKIN, J. When the net proceeds of a mine are derived from veins or deposits of ore, the apexes of which and the surface ground of the mining claim are within the boundaries of a county, city, or town, we have no doubt that under the revenue act such proceeds are taxable therein, notwithstanding a portion or even all the ore may have been extracted from the mine beneath the surface on the dip, outside of the boundaries of the county, city, or town. The situs of such a mine, for the purposes of taxation, is not determined by the place at which the ores are brought to the surface, but by the place in which the apexes of the veins or deposits of ore, and the surface covering their apexes, are situated. BARTCH, C. J., and MINER, J. We concur in the affirmance of the judgment, but dissent from the holding contained in the opinion with reference to the place where the net proceeds of the mine are taxable. We agree with the trial court that the net proceeds of the appellant's mine, both within and without the city of Eureka, are taxable at the place where the ores are taken to the surface through the main shaft of appellant's mine, which is within the limits of the respondent city. The net proceeds, being personal property, should be taxed in the city of Eureka, and as other personal property. Frost v. Board of Review of City of Oskaloosa. Appeal from Assessment-City Council Acting as Board of ReviewImproper Service of Notice of Appeal - Statutes.-Plaintiff appealed from the assessment of the defendant city council acting as a board of review, and the acceptance of notice of appeal, signed after the board's adjournment, was by "J. P. Seibert, Chairman." Code, 1370, makes the city council the reviewing board therein, and section 1373 provides that an appeal may be taken from the action of the board by a written notice to the chairman or presiding officer of the reviewing board. Code, 658, prescribes that the mayor shall be the presiding officer of the council, and that the selection of a chairman pro tem. to act in the mayor's absence shall be recorded. At the time plaintiff's assessment was reviewed, the mayor was not in the room, but in his adjoining office, and the meeting was presided over by J. P. Seibert, who had previously been elected chairman pro tem., though such election had never been recorded: held, that the Abstracts notice of appeal was not properly served within the statute, the mayor being the person on whom service should have been made; and hence the appeal was properly dismissed. Appeal from district court, Mahaska county; A. R. Dewey, Judge. Appeal from an order of the district court dismissing plaintiff's appeal from the action of the defendant in the matter of his assessment. Affirmed. Liston McMillen, for appellant. B. W. Preston, for appellee. SHERWIN, J. At the time the matter of plaintiff's assessment was before the defendant, B. V. Seevers was the mayor of Oskaloosa. The sessions of the board were held in the mayor's office, which consisted of a front and rear rooms. The mayor was present at the opening of each session. He directed the roll call, and swore the witnesses when they were sworn at all. He did not remain in the room with the board all the time, but was either there or in his front room when the board was in session. He was not actually in the room when plaintiff's assessment was under consideration, and the plaintiff claims that J. P. Seibert, a member of the city council, was acting as chairman of the defendant board at the time, by virtue of his selection some time before as mayor pro tem. Acceptance of service of the notice of appeal from the action of the board was signed, "J. P. Seibert, Chairman," and this was done after the board had finally adjourned. Section 1370 of the Code makes the council of a city the reviewing board therein. Section 1373 provides that an appeal may be taken from the action of the board "by a written notice to that effect to the chairman or presiding officer of the reviewing board." By section 658 of the Code the mayor of a city is made the presiding officer of the council. When acting as a board of review, the council is performing a duty enjoined by law, and the mayor is as much the presiding officer then as at any other time. True, the statute provides for a temporary chairman or presiding officer in the absence of the mavor, but it also wisely provides that when one is appointed it shall be made a matter of record. There was no selection of Mr. Seibert to act, in the absence of the mayor, at the sessions of the board of review, nor was his selection as temporary presidng officer at any time ever entered of record. Nor do we think the statute contemplates the service of a notice of an appeal on the person who may happen to be acting as temporary chairman of the board when the particular matter in dispute is disposed of. If this construction were to be given the law, it would result in great confusion and uncertainty. We think the mayor of the city should have been served with notice in this case, and the judgment is affirmed. Affirmed. Abstracts Bell County Coke & Improvement Co. v. City of Pineville et al. (Court of Appeals of Kentucky, Oct. 4, 1901.) [64 S. W. Rep. 525.] Municipal Taxation of Farming Lands.-The fact that land embraced within the boundary of a city is used for farming purposes, and derives no benefit from the city government, does not exempt it from taxation by the city. Same Former Judgment-Res Judicata. A judgment perpetually enjoining a city from collecting a tax for a particular year is not a bar to the collection of a similar tax by the city upon the same property for another year. Appeal from circuit court, Bell county. "Not to be officially reported." Action by Bell County Coke & Improvement Company against the city of Pineville and its tax collector to enjoin the collection of taxes. Judgment for defendants, and plaintiff appeals. Affirmed. Tinsley & Faulkner, for appellant. C. W. Metcalf and J. L. Reeder, for appellees. DU RELLE, J. Suit was brought by appellant against appellee city and its tax collector to enjoin the collection of taxes for the years 1895 to 1898, inclusive, upon appellant's property within the city limits of Pineville. The averments of the petition show that Pineville is situate on both sides of the Cumberland river where it passes through Pine Mountain; that the greatest length of that part of the city which is built. up as a city does not exceed a mile, and its greatest width does not exceed a quarter of a mile; that the boundary defined by its act of incorporation is a circle of a mile and a half radius from the court house in the city; that by an amendment the boundary was extended by the addition of territory included in a line beginning at a point in the northwest line of the city limits 300 yards north of the center line of the Louisville & Nashville Railroad Company's right of way; thence west, and parallel with said line, to the west line of the land of appellant; thence with that line to the Cumberland river; and thence east with the river to the west line of Pineville. It is averred that appellant's lands are farm lands; that between its land and the city proper there is a large extent of farm lands, over half a mile in extent; that there is no connection by streets or otherwise between the city proper and its land; that its land cannot be used as city property, nor can the city exercise any police protection or control over its land, and therefore its land is not subject to city taxation, and the collection of the taxes claimed by the city would be a taking of property without due process of law. It is further insisted that the boundary defined by the original act and also that fixed by the amendment are void for uncertainty. In a second paragraph appellant pleads res judicata, alleging a judgment of the Bell circuit court perpetually enjoining the |