the second term of this court next after the [ was not in Mrs. McCallister's possession at granting of the appeal. As the judgment the time she died, but was being kept for was filed, and the appeal was prayed and granted, within two years, and the transcript was filed more than 20 days before the first day of the second term of this court next after the appeal was granted, it follows that the motion to dismiss the appeal should not be sustained.

H. M. Stanley by Mrs. Matthews, and was given to him after Mrs. McCallister's death. McClain Stanley also said that he heard his mother say she was going to give the diamond brooch to his sister, Mrs. Matthews. After his mother's death, McClain Stanley says that H. M. Stanley, who lived with his mother and who attended to all her business for her, told him that his mother's indebtedness consisted of $1,400 to the bank and $400 in accounts. In Mrs. Matthews' letter of November 14, 1914, to the trust company, she said that she understood that her mother's indebtedness was $1,800, and that she had agreed with her brothers, H. M. Stanley and

third of the amount if they would pay their two-thirds. Though this agreement had been made, H. M. Stanley thereafter asserted a claim against the estate for $5,500. Mrs. Matthews being a nonresident, the trust company's officers had no way to recover the property except by an attachment, and the ownership of the brooch at the time of Mrs. McCallister's death was so questionable that they did not feel that they could make proper affidavit to secure an attachment.

H. M.

With respect to the diamond brooch, for the value of which the trust company was held liable, the evidence in behalf of the trust company is as follows: Following its qualification as administrator with the will annexed of Mrs. McCallister, it learned that H. M. Stanley, McClain Stanley, and Mrs. Matthews, legatees under the will and the heirs at law of Mrs. McCallister, had previous-McClain Stanley, that she would pay onely divided their mother's estate between them, and that each was in possession of certain personal property. It made demand on these persons for the return of the property which they had obtained from the estate. On November 11, 1914, it addressed to Mrs. Matthews who lived at Hillsboro, Ohio, a letter enumerating the articles of personal property including the brooch, which, it had been informed, she had in her possession, and requested the return of the property. In reply to its demand, Mrs. Matthews stated that she would like to retain certain items of personal property, other than the brooch, which she had received from the estate, on account of their sentimental value, and would be willing to pay their appraised valuation. She further stated that the brooch had been given her in the year 1899, and that she had kept it in her possession until her mother had become so afflicted with rheumatism that she could not wear her rings, at which time she begged her mother to take the brooch and wear it and enjoy it so long as she lived, which she did. She also gave the names and addresses of two witnesses who could substantiate her statement. Mrs. McCallister's will provided that the brooch should go to Mrs. Matthews, one diamond ring should go to McClain Stanley, and another diamond ring to H. M. Stanley. Mrs. Matthews stated in her letter that Mrs. McCallister's will was nothing more than a memorandum of her wishes, as her mother had given away many of the articles enumerated in the will, and others had been sold and her mother had used the money. McClain Stanley testified that the diamond ring, which was left to him by his mother's will, had been given to him by his mother a year and a half before her death, but that he had given it back to her to keep for him, and that she had it at the time of her death. When asked where the ring was that H. M. Stanley got under the will, he said that Mrs. Matthews had it, and that she told him "Morgan" gave it to her to keep for him. The ring which had been given to H. M. Stanley by his mother

On the other hand, the facts relied on by appellee are as follows: The will itself bequeathed the diamond brooch to Mrs. Matthews. The report of the appraiser shows that the brooch was not on hand so that it could be appraised. The brooch was in the possession of Mrs. McCallister at the time of her death, and belonged to her. Stanley gave the administrator a list of the personal property owned by his mother, and included in the list was the brooch. F. J. Pentecost notified the trust company that Mrs. Matthews had the brooch, and that it was worth enough to pay all of the debts against Mrs. McCallister's estate, that the brooch was given to Mrs. Matthews in the will, but that Mrs. Matthews took no title until the debts were paid. He further told the trust company that Mrs. McCallister had property in Henderson county, and that if it brought suit to subject the property, the Henderson circuit court would have jurisdiction. Pentecost was informed that it was a matter for the administrator to look after through its own attorneys, and not through him. Later on, Pentecost wrote to the trust company as follows:

"I notice in your appraisement Mrs. Matthews is claiming the diamond brooch as her own, upon the idea that it was given to her by her mother prior to her death. Evidently this is a mistake. My information is that this brooch, together with several other very valuable jewels, skin bag around her neck, and that Miss Lewis, were carried by Mrs. McCallister in a chamois the trained nurse who attended her, took them from around her neck after the breath of life had left her body. I would suggest that you

(218 S. W.)

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ment of sewers and streets, necessitating a tax to pay the bonds on all the property in the city, subjection of particular property to payment of special tax for the improvement of particular streets does not amount to double taxation on the particular property.

and thereupon adopted an ordinance for the improvement of certain named and described principal streets in the city in the manner provided for in the ordinance, the ordinance further provided in substance that one-third of the cost of the street improvements would

5. MUNICIPAL CORPORATIONS 407(3)-TAX be paid by the city out of the $80,000, and FOR SEWER IMPROVEMENT AND ONE FOR the other two-thirds should be paid by the STREET IMPROVEMENT NOT DOUBLE TAXATION. abutting property owners on the streets to be When a property owner in a city is required improved. to pay a sewer improvement tax and a street improvement tax, no question of double taxation arises, as the two improvements are differ

ent in kind.

6. MUNICIPAL CORPORATIONS

408(1)-No CONFLICT BETWEEN STATUTES AUTHORIZING SPECIAL ASSESSMENT FOR STREET IMPROVEMENT AND ISSUANCE OF BONDS FOR GENERAL

IMPROVEMENTS.

Ky. St. § 3577, under which street improvement work was directed to be done and a special assessment tax levied in a city of the fourth class, is entirely independent of other sections, authorizing issuance of bonds for general improvements and levy of tax on the property of the whole city to pay the bonds; there being no conflict between the several sections, each method relating to and providing for a separate and distinct method of street improvement.

Suit by E. V. Elder against the City of Richmond and another. On motion to grant injunction in the Court of Appeals after denial in the circuit court. Motion overruled.

J. J. Greenleaf, of Richmond, for plaintiff.
Joe P. Chenault, of Richmond, for defend-

ants.

CARROLL, C. J. The plaintiff, Elder, for himself and other residents and taxpayers of the city of Richmond, brought this suit against the city and the board of council, seeking to have certain street improvement ordinances adopted by the council declared illegal and void, and to enjoin the council from letting street improvement contracts provided for in the ordinances.

In this suit, a number of reasons why the ordinance should be declared invalid and the letting of the contract enjoined are pointed out by counsel for Elder, but we think it only neccessary in this opinion to consider those that are deemed of sufficient importance to merit discussion.

[1] It is urged that because the plans and specifications for the street work, although adopted in the ordinance ordering the improvement and on file in the city engineer's office and spread upon the minute-book of the council as a part of the adopted ordinance, were not actually incorporated in the ordinance when introduced, or published as a part of the ordinance in the newspapers, the ordinance and publication does not sufficiently comply with the law and is invalid.

The ordinance, after describing the streets to be improved and setting forth the kind of material to be used, further provided that—

"All of said work shall be done in accordance with the survey, plans and specifications prepared by S. F. Crecelius, city engineer, which are attached hereto and are hereby approved, adopted and made a part of this ordinance and recorded as a part of same upon the city minute book."

It was further provided in the ordinance that bids for the work should be made in accordance with the ordinance, plans, and spec- › ifications, and that the work should be accepted, when completed in accordance with the plans and specifications.

The charter of cities of the fourth class, of which Richmond is one, although providing On application to the judge of the Madison for the enactment and publication of street circuit court, he refused to grant the injunc-improvement ordinances, does not in terms tion sought, and the plaintiffs, Elder, and others, having brought the case before me, ask that I grant the injunction refused by the judge of the lower court.

Briefly, the facts are these: In 1917, the people of Richmond voted a bond issue of $150,000 for the purpose of building streets and sewers. After procuring the money on the bonds, the city council decided to invest $70,000 in the construction of sewers, and $80,000 in the construction of streets, and | under this plan the $70,000 was invested in sewer improvements.

require that the plans or specifications shall appear in full in the ordinance or in the publication; and, in the absence of some mandatory statutory direction or necessary inference therefrom, we do not think it essential to the validity of the ordinance that it should set out in full the plans or specifications, or that they should be published.

The plans and specifications for work like this could not be understood except by persons having experience or technical knowledge of such matters, and therefore their incorporation in an ordinance or publication would be When it came, however, to making the of no practical benefit to the general public. street improvements contemplated, the coun- The plans and specifications in this case were cil concluded that $80,000 was not sufficient made by the city engineer. They were reto do the street improvement work desired, | ferred to and adopted as a part of the ordi

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(218 S. W.)

nance, and open to the inspection of any person desiring to examine them.

The ordinance set out with fullness and accurancy all the other facts necessary to its validity, and contained such information as would enable property owners and others to have a full understanding of the nature of the improvements contemplated, and we do not think the failure to incorporate in the ordinance or have published with the ordinance the plans and specifications affected its validity.

[2] The ordinance further provided that apportionment of the cost should be made on a basis which treated each street as a separate unit, or separate improvement, instead of adopting each block as a unit, or considering all the streets named in the ordinance as one improvement, so that each piece of property in the block, or the whole improvement area, might be assessed its proportionate cost of the entire improvement; and counsel raises the question that the apportionment should be based on the ratio of the abutting feet to the total abutting feet of all the work provided for by the ordinance, or the abutting feet in the block, rather than the ratio of the particular owner's abutting feet to the total number of abutting feet on the improved part of the street on which the property is located.

against the property abutting on each street its proportionate cost of the improvement of that particular street.

[3] In providing for the improvement of streets by special assessment, the council should adopt that plan that will provide as fair and uniform a rule of assessment as is practicable under the circumstances, and when such a rule has been adopted by the municipal authorities as in this case, the courts will not interfere with their decision.

[4] The city, as we have before said, issued, under authority of the vote of the people, bonds in the sum of $150,000 for the improvement of sewers and streets, and a tax to pay these bonds will be levied upon all the property in the city, including that that will be subjected to the payment of the special tax for the improvement of particular streets. Accordingly, it is said that this amounts to double taxation on the property subject to this special improvement assessment.

It is true that the property that is subject to the payment of this special improvement tax will also be required to pay its proportionate part of the tax necessary to liquidate the bond issue, and, therefore, if the bond issue or any part thereof had been expended in other street improvement, the property subject to the special assessment would be taxed twice for street improvements.

But this would not be double taxation in the meaning of the law. The special assessment only imposed a tax on the property abutting upon the streets actually reconstructed, and this property got the benefit of this special improvement. There is no inequality in the special assessment tax; it is

ting on the streets to be improved under the special assessment. In other words, all property situated alike bears its proportionate part, and no more, of this special assessment tax.

It is provided in section 3563, vol. 3, Ken. tucky Statutes, under which the improvements in the city were authorized to be made, that they, "except as hereinafter provided, shall be made at the exclusive cost of the owners of real estate abutting on such improvement, to be apportioned among and assessed upon the lots or parcels of real es-borne equally by all classes of property abuttate abutting feet and a tax shall be levied upon such lots or parcels of real estate for the payment of the cost assessed thereon." The ordinance provided for the improvement of four streets at one and the same time and under one contract, and that the improvement "shall be made at the exclusive cost of the owners of real estate abutting on such improvement, to be apportioned among and assessed upon the lots or parcels of real estate abutting feet" on each of said streets, and we think this manner of assessing the cost improvement was authorized by the statute.

The statute also provides that the improvement shall be made at the cost of abutting owners, and should be apportioned among them according to the abutting feet owned by each, but does not prescribe the unit. Therefore we think it was permissible for the ordinance to provide that the owners of abutting property on each street should pay their proportionate cost of the improvement of such street. It appears to us that when a city under a statute, like the one here in question, has described certain streets that shall be improved, no matter how many there may be, it may make each street a unit, and assess 218 S.W.-16

If a city levied a general tax on all the property in the city, to liquidate a bonded indebtedness, created for the purpose of improving the streets of a city, and it could not, in addition to this, levy special street improvement taxes to be paid by property abutting on streets to be improved, it is apparent that if the general tax was not sufficent to improve all the streets in the city, those that could not be improved out of the funds raised by the bond issue must be left unimproved, and this, in many instances, would leave a city helpless to make needed street improvements. Such a condition as this ought not to exist, and need not under the law, because special assessments, fairly made, will not amount to double taxation, although there may be, in addition thereto, a general street improvement tax.

The question raised by counsel, although not heretofore considered by us, has been the subject of investigation by other courts.

In

Page and Jones, Taxation by Assessment, vol. 1000 was voted for sewer and street improve 2, § 719, it is said:

ments, but no part of it was used in street improvements. The $70,000 that was used was put in sewer improvements, and a sewer improvement and tax therefor is distinct from a street improvement and tax therefor, so that, when a property owner is required to pay a sewer improvement tax and a street improvement tax, the question of double taxation cannot come up, as there could be no double taxation in such a case.

It further appears that $80,000 of the bond issue is to be used by the city in street improvements, and devoted to the payment of one-third of the cost of the street improvement directed to be made by the ordinance. So that these complaining property owners are getting the whole benefit of all that part of the bond issue that was set apart for and that will be used in street improvements.

In re Beechwood Avenue, O'Mara's Appeal, 194 Pa. 86, 45 Atl. 127, it appears that the city of Beechwood had issued street improvement bonds, to be paid by taxes levied on the property in the city. Thereafter, by ordinance, certain street improvements were directed to be made at the cost of abutting owners, and one of these abutting owners objected to the payment of the special as sessment upon the ground that, as his prop-ment, when the city could have charged these erty was taxed to pay the bond issue, the

special assessment amounted to double taxation. The court, in answer to this objection, said:

"As to appellant's objection that by the assessment in question his property will be subjected also to taxation on account of the city bonds issued for said loan, and therefore to double taxation, it is sufficient to say that the latter is no ground for immunity from assessment for special benefits accruing from local improvements. Double taxation is not illegal unless it produces inequality as to other property similarly situated. No such allegation is even made in this case."

The city, out of this bond issue, is paying one-third of the cost of the street improve

property owners with the full amount of the

street improvement and used the $80,000 in other street improvements or for sewers.

[6] It is also argued that there is such conflict between the statute under which the general bond issue was authorized and the statute under which the local assessment was authorized as to cast a doubt upon the right of the city to levy a special assessment tax. Section 3577, under which the improvement was directed to be made, and the special assessment tax authorized to be levied, was enacted for the purpose of authorizing such a tax as was provided for by the ordinance here in question. This section, and the others relating to special assessments for particular

considered as entirely independent of other sections, authorizing the issual of bonds for general improvements and the levy of a tax upon the property of the entire city to pay the bonds so issued.

Thus, keeping these two methods distinct, there appears to be no confusion or conflict between them. Each relates to and provides for a separate and distinct method of street

Counsel call attention to the case of Shuey v. Trapp, 166 Ky. 696, 179 S. W. 578, as containing an intimation that a special assess-ly described street improvements, must be ment tax like that here involved amounts to double taxation, but an examination of that case will show that the question here presented was not before the court in that case, nor does it decide that such an assessment as was here made would amount to double taxation. Of course, a state of case might arise in which the plea of double taxation could be successfully raised by abutting owners whose lands were about to be subjected to the pay-improvement. ment of a special assessment, when there had theretofore been voted and they were required to pay their part of a general tax levy for the same general purposes as the special assessment tax. As, for example, when it was made to appear that the special assessment was unequal, unreasonable, or oppressive, or that the city council, for frivolous reasons or corrupt purposes, had imposed it. But no such conditions appear in this record. It is admitted that the council acted in good faith and with an eye single to the best interest of the city.

[5] But aside from what we have said, we hardly think the question of double taxation arises on the record. The bond issue of $150,

The ordinance, following the statute, provides that the city, in anticipation of the collection of the local assessment, may issue and sell improvement bonds, pledging for their payment the local tax with lien on the property, and apply the proceeds to the payment of the particular improvement.

It further provides that said "bonds and interest coupons shall be payable exclusively out of funds actually paid to and collected by the city on account of the improvement taxes in anticipation of which the bonds are issued, and in no event shall the city be liable on any such bonds except to the extent of funds actually paid to it, as above set out." It will thus be seen that the city does not