Towns and Cities.

TOWNS AND CITIES (Continued.)

when the property to be assessed is bounded by the principal
streets or laid off into squares.

But when the property to be assessed is not bounded by principal
streets or laid off into squares, the council must, by legislative ac-
tion, determine what contiguous property is to be taxed, and the
extent to which it is to be taxed. If, in such a case, the ordi-
nance is invalid to any extent, this is not an error which the
courts can correct.

In directing that the assessment to pay for the improvement on
Barret Avenue should extend to the depth of two hundred and
fifty-two feet on the east side and one hundred and forty-seven
and one half feet on the west side of said avenue, the ordinance
was invalid, as decided in Preston v. Roberts, 12 Bush, 570, in so
far as it extended the assessment on the east side beyond one
hundred and forty-seven and one half feet.

The contractor who made the improvement on Barret Avenue is not
entitled to recover of the lot-owners to the depth of one hundred
and forty-seven and one half feet what he failed to collect to the
depth of two hundred and fifty-two feet on the east side of said
avenue, because the ordinance under which the improvement was
made was invalid in so far as it extended the assessment beyond
one hundred and forty-seven and one half feet. Loeser v. Redd
& Bro.........
18

2. LOT-OWNERS ARE NOT LIABLE for any part of the cost of street
improvements made under a contract with the council of the
city of Henderson, in which a part only of the work contracted
for was completed by the contractor, and received and paid for
by the city council. City of Henderson v. Lambert............ 24
8. The council is the agent of the law in making contracts for street
improvements, so as to make the cost a charge upon the abutting

lots.

The work to be done must be ascertained and prescribed in the
ordinance and contract. When this is done, certain rights, du-
ties, and liabilities become fixed, and thereafter the duty of the
council, so long as the contract remains in force, or is unchanged
by proper proceedings, is to see that it is performed as made.
Ibid.
.... 24

4. By receiving a part of the work and dispensing with the performance
of other parts, the city council can not compel the lot-owners to
pay for so much as a delinquent contractor may find it convenient
or profitable to perform.

The council has no power to accept part performance so as to make

Towns and Cities.

TOWNS AND CITIES (Continued.)

the owners of abutting lots liable to pay for the work performed.
Ibid.............

24

5. When street improvements have been accepted by the proper authority
of the city, and there is no allegation of fraud or collusion, such
acceptance is conclusive evidence that the work was performed
according to the requirements of the contract. Ibid........... 24
6. There is no common-law liability resting upon lot-owners to pay for the
improvement of an adjacent street. Ibid......
24

7. Statutes authorizing assessments upon abutting lots, to pay for street
improvements, must be construed most strictly against those
asserting claims under them. Ibid

24

8. THE CITY OF LOUISVILLE MUST ANSWER IN DAMAGES FOR INJU-
RIES caused by making a fill across a natural drain.

In constructing a street without making a sewer or culvert the city
obstructed the passage of the water, caused much of plaintiffs'
lot to be covered with water, destroyed their shrubbery and gar-
den, and injured the health of their family.

The plaintiffs are entitled to recover for the injury to their house
and lot caused by the construction of the fill, and while no recov-
ery can be had for physicians' bills paid, or loss of time on the
part of the occupants on account of sickness caused by the stag-
nant water, still these facts may be proved with a view of show-
ing the extent to which the value of the property has been
lessened by reason of the acts complained of. Kemper and wife
V. City of Louisville...........

87
9. THE OWNERS OF LOTS IN A CITY HOLD THEM WITH AN IMPLIED
CONSENT ON THEIR PART that the city or the properly-constituted
authorities may construct streets or change the grade of streets
when deemed expedient or when the public good requires it; and
the citizen must submit to such incidental disadvantages as do
not amount to an invasion of his private rights. Ibid......... 87
10. BUT WHEN THE PROPERTY OF THE CITIZEN HAS BEEN TAKEN or
such acts committed by the city or those in authority as amount
to a total or partial destruction of his property, the damages sus-
tained being the direct and immediate consequence of the acts
complained of, he can not be denied the protection of that con-
stitutional provision entitling him to just compensation before
appropriating his property to public use. Ibid................ 87
11. RESIDENT CITIZENS AND TAX-PAYERS OF A CITY ARE COMPETENT
JURORS in an action by a lot-owner to recover damages against
the city for injury done by the city to his premises. Ibid... 87

Towns and Cities.

TOWNS AND CITIES-(Continued.)

12. A STREET IN AN INCORPORATED TOWN IS NOT A PUBLIC ROAD,
within the meaning of section 41, chapter 94, General Statutes,
providing a punishment for erecting a fence in or across a public
road. Clark, &c. v. Commonwealth........

...... 166
13. The purpresture of a street is a common-law offense, punishable by
indictment, but can not be punished under an indictment for
obstructing a public road, by virtue of section 41, chapter 94,
General Statutes. Ibid..........

......

..... 166

14. MUNICIPAL CORPORATIONS ARE AGENCIES of the sovereign author-
ity of the state, and can exercise no powers but those which are
conferred upon them by the act by which they are constituted,
or such as are necessary to the exercise of their corporate powers,
the performance of their corporate duties, and the accomplish-
ment of the purposes of their incorporation. Henderson, &c. v.
City of Covington, &c...................

312

15. THE CITY COUNCIL OF COVINGTON HAD NO POWER TO APPROPRI-
ATE THE REVENUES OF THE CITY TO OBTAIN AN INCREASE OF

THE POWERS OF THE CORPORATION, through persons sent by the
council to appear before the General Assembly and Congress.

The City Council of Covington passed a resolution appropriat-
ing $186 to pay the expenses of persons sent by the council to
Frankfort and Washington City to procure such legislation as
might be necessary to authorize the city to build a bridge over
the Ohio River. Residents and tax-payers of the city brought
this suit to enjoin the city officials from paying the money in
accordance with the resolution. The court below sustained a
demurrer to the petition. That judgment is reversed. Ibid. 312
16. REWARDS OFFERED BY MUNICIPAL CORPORATIONS—

The City Council of Covington had no authority to authorize
the mayor of the city to offer a reward for the arrest of the city
treasurer who had been indicted for forgery and for the embezzle-
ment of the funds of the city; and at the suit of tax-payers, the
city council is enjoined from paying such reward, and also from
paying expenses incurred in procuring the arrest and extradition
of said treasurer from the Dominion of Canada. Patton, &c. v.
Stephens, &c...............
324
17. A MUNICIPAL CORPORATION CAN NOT EXPEND MONEY, EXCEPT
FOR OBJECTS EXPRESSED IN THE CHARTER, or for purposes nec-
essarily connected with those objects. (Bangs v. Snow, 1 Mass.
187; Stetson v. Kempton, 13 Mass. 271; Gale v. South Berwick,
51 Me. 174; Lee v. Trustees of Flemingsburg, 7 Dana, 28.)

Towns and Cities-Trusts and Trustees.

TOWNS AND CITIES (Continued.)

It is no part of the duty of a municipal corporation, as such, to
bring to justice offenders against the laws of the state.

Power to offer rewards for the arrest of criminals is not an ordi-
nary corporate power or incident to such power. Ibid......... 324
18. NO POWER CAN BE IMPLIED IN FAVOR OF A MUNICIPAL CORPORA-
TION which does not pertain to matters which peculiarly con-
cern the local public, and without which those local affairs com-
mitted by the state to the corporation can not be properly
attended to.

"Power to pass all needful by-laws and ordinances for the due
and effectual administration of right and justice, . . legislate
upon all subjects which the good government of such city shall
require," etc., does not confer authority to appropriate money
for the enforcement of the laws of the commonwealth, in the
enforcement of which every other community has, in contem-
plation of law, the same interest as the city of Covington. Ib. 324
19. TO PREVENT A CITY COUNCIL FROM MAKING AN UNAUTHORIZED
APPROPRIATION OF THE CITY REVENUES an injunction is the
proper remedy.

A writ of prohibition is directed to a judicial tribunal, and not
to a legislative body such as a city council. Ibid.............. 324

TRUSTS AND TRUSTEES-

1. A DEVISE OF LAND TO ONE FOR THE BENEFIT OF OTHERS creates
a trust in favor of the beneficiaries, and a levy and sale of the
land so held, under an execution against the trustee, passes no
title to the purchaser as against the beneficiaries.

---

The purchaser in such a case is not an innocent purchaser.
But the purchaser is entitled to such interest as the trustee
may have acquired in the land by descent from one of the bene-
ficiaries. Booker, &c. v. Carlile, &c............
154
2. A CESTUI QUE TRUST, FOR WHOM LAND WAS HELD-"not to be
used, the principal, until (she arrives) at twenty-six years of age,
except the income or interest" after arriving at the age of
twenty-one years, might sell and convey her interest in the land.
In this case the land was conveyed to the guardian for the use and
benefit of his ward; the ward, after arriving at the age of twenty-
one years, conveyed the land to the guardian and his wife, and
the guardian and his wife sold and conveyed it to their vendee.
All the right, title, and interest of the ward, and of the guardian
and his wife, were vested in such vendee. Buford's adm'r, &c.
V. Guthrie....

677

Turnpikes-Usurping Office of Judge of Election.

TURNPIKES-

1. A SUIT TO SUBJECT PROFITS OF A TURNPIKE ROAD COMPANY to
the payment of a debt of the company creates a lien on such
profits in favor of the plaintiff. Gibbons v. Germantown &
Hamilton Crossroads Turnpike Road Company, &c.............. 389
2. THE FIRST CREDITOR SUING AND CREATING A LIEN, ON THE FUND
SOUGHT TO BE SUBJECTED, is entitled to a preference over other
creditors who are subsequently made parties to the same action,
and to have his debt first paid out of such fund. Ibid......... 389

USAGE. (See Custom.)

USURPING OFFICE OF JUDGE OF ELECTION-

1. USURPING THE OFFICE OF JUDGE OF AN ELECTION IS AN INDICT-
ABLE OFFENSE.

The office of judge of an election is a constitutional office.

Appellant was indicted, convicted, and fined $500 for usurp-
ing the office of judge of the election at the third-ward polls in
the city of Covington. That judgment is affirmed. (Sec. 1, art.
25, chap. 29, and secs. 1, 4, 5, art. 3, chap. 33, Gen. Stat.)

The indictment in this case accuses the defendant of the of-
fense of usurping an office, as follows: "The said Martin D.
Wayman, on the 5th day of August, 1878, in the county and
state aforesaid, . . . did unlawfully usurp the office of judge
of election at the third-ward polls in the city of Covington, at
an election then and there being legally held under the constitu-
tion and laws of the state of Kentucky for the offices of judge of
the Criminal Court of the Twelfth Judicial District, judge of
the Kenton County Court, and other county offices, and for the
offices of mayor and marshal of the city of Covington, and for
which offices citizens of Kenton County were then and there
candidates, and were then and there voted for, and at which
election so had and held, Joseph Havlin and Jacob C. Lett were
in office, the duly-appointed and qualified judges of said election,
the said Martin D. Wayman, then and there usurped said office
of judge aforesaid, and forcibly displaced said Havlin and Lett
from said office, and then and there pretended to and unlawfully
did occupy said office and discharge the duties thereof by receiv-
ing and causing to be recorded votes for candidates for the office
aforesaid, and certifying the returns thereof," etc. Wayman v.
Commonwealth......
.... 466

2. UNDER THE FOREGOING INDICTMENT IT WAS IMMATERIAL whether
the incumbents of the office of judges of said election had been
legally appointed or sworn or not. Ibid.....

466