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of the farm as now constituted. The tenta- the general outline of the remainder. Active division, which they suggested, would cording to all the evidence on both sides, the give each tract an outlet by this old road tract is worth from $45 to $50 per acre. and make the whole easily accessible to the All the neighboring landowners give evidence pike, which is a short distance away. A to this effect. Those most interested assert map showing the situation and general out that 30 acres laid off, as proposed, will be line of the tract is made a part of the record. adequate to raise a sum sufficient to satisfy

The trial court in its judgment directed a the entire lien debt. When laid off, as sugdivision of the lands, in kind, after a suffi- gested, the loss of the 30 acres will not so ciency thereof had been sold to satisfy the impair the residue as to render a division lien debt of J. M. King. It denied plaintiff's impracticable. The judgment directs the masclaim for rents and adjudged the cost largely ter commissioner to sell only enough of the against her.

tract to satisfy the lien debt, and, when this [1, 2] It is a well-established rule that sale is made, definitely fix the boundary of where lands are susceptible of division, with the tract sold so that the balance can be out material impairment of their value, a certainly known and boundaries fixed. There division thereof will be had, if desired by the is no good reason why the judgment should owners, rather than a division of the pro- not have directed a division of the residue ceeds after a sale for that purpose. The rule after the sale of this portion for the satisfacis stated in Kirk v. Crutcher's Adm'r, 145 Ky. tion of the lien claim. This court, in the 52, 139 S. W. 1076, thus:

case of Maynard v. Maynard, 178 Ky. 332, "The law favors a division of land rather

198 S. W. 910, approved a judgment partithan a sale for division, and a sale will not be tioning lands after a sale of a portion to ordered unless substantial injustice will be satisfy a lien debt, in substance the same done by a partition."

as the one complained of here. Certainly ap

pellant, Mrs. V. J. King, will not be prejuTo the same effect is Prewitt's Committee diced by such division, v. Hurt, 178 Ky. 528, 199 S. W. 33. It is

[4] Appellant insists that she was entitled urged, however, that the land is not on the to recover rents for the use of the farm for main highway, is isolated, and that its shape the year 1916. D. M. King died in October, and general nature is such as to render it 1915. He and his wife were residing upon impossible to make a division into three the farm in question at the time of his death, parts, after satisfying the lien debt, without and some of the wheat lands had been prematerially impairing its use as well as its pared, if not sown, for the following year. salable value. It is urged in support of this The widow continued to reside in the manthat the farms adjoining this tract are large sion house on the farm; she rented some of and devoted to tobacco and wheat raising, the land and caused it to be cultivated. For and that there are no tracts with as few as this the appellant claims rent. The widow 100 acres, in that vicinity. We have care

was entitled to the use and occupancy of the fully examined the map and evidence relat

mansion house, barn and lot, garden and ing to the shape, nature, and character of the

orchard, if there was one, free from rent unlands in question, and are firmly of the opin

til assigned dower. No dower had been asion that the lands are susceptible of the di

signed up to the commencement of this acvision proposed without materially affecting

tion. J. M. King does not reside upon the their usefulness or value. The old road which runs through the farm is an east out-1

farm, but owns a large one near by. He did

not occupy or use any part of the farm in let for each proposed tract, and has been

question. The widow, Mrs. Katie King, used employed in the enjoyment of the farm as a

less than one-half of the farm according to whole and may be so employed by the sev

the evidence. She was entitled to use at eral owners when divided. While most of

least one-third of the farm in addition to the the evidence introduced by both sides presents chiefly the opinion of the witnesses, yet

house, garden, barn, and lot, etc. J. M. King

was entitled to one-third of the farm, exthere is sufficient testimony, aside from the

cluding the house, garden, etc., which the map introduced, to have fully warranted the

widow occupied; but he is not claiming rent trial court in arriving at the conclusion that

from the widow, and insists that she is enthe lands are susceptible of advantageous di

titled to the use of the place without paying vision. (3] It is next urged that the judgment of

rent. If appellant, Mrs. V. J. King, was enpartition is premature, in that the lien debt

titled to rent at all, it was upon one-third of must first be satisfied, and this would take

the farm exclusive of the widow's right to an unascertained part, leaving at present an use the house and premises. According to unknown pumber of acres for division. This the evidence, J. M. King approached V. J. position is not well taken. The commission- King in the early part of 1916 and inquired ers appointed to divide the lands, and who of her what she wanted to do with her part made the tentative report of division, so ar- of the D. M. King farm that year, and she ranged the division as that the part sold may declined to give him an answer or to tell him be increased or diminished without changing what she wanted to do. Her son advised

her that she should indicate what her pur-, first to exhaust the personal property bepose was, but she refused. From the evi- fore asserting his lien upon the real propdence it further appears that about one-half erty. Appellees denied that there was sufof the farm was not used at all that year, ficient funds in the hands of the personal and both Mrs. Katie King and J. M. King as- representative to discharge in whole or in sert that they were willing for appellant to part the lien debt. This is not an action for have the use of some part of the farm and a settlement of the estate of D. M. King, did not interfere with her using or occupying but is a suit for a sale of lands for a divithe same. Considered in the light of this sion of the proceeds. The lien note is preevidence, we do not think the trial court sented by the answer of the defendant J. M. erred in refusing to allow appellant, V. J. | King. It is admitted to be a lien upon the King, to recover rents for the year 1916. lands sought to be divided. Its holder had

Complaint is made that one of the commis- the right to assert his claim and to enforce sioners appointed to divide the land was not his lien against the lands in this action. qualified because of partiality, but we find Especially is this true where no settlement no sufficient ground upon which to rest this of the estate is prayed, or effort made to show complaint. From the evidence it appears that an administrator has in his hands sufthat the commissioner complained of is a ficient funds with which to satisfy the inman of good standing in his county, wide cumbrance. experience, and of special fitness for the [8] The trial court adjudged the cost of work contemplated. He is a surveyor who the assignment of dower against appellant, has helped to divide a great number of tracts and this we think was error. There was no of land, and who has been repeatedly elect- controverted question of fact with reference ed to the office of county surveyor of Harri- to the assignment of dower. The petition son county.

admitted that the widow Katie King was en[5, 6] It is also insisted by appellant that titled to dower. The answers assert the same. the lien note presented by the answer of the The cost in this respect should have been defendant J. M. King is not sufficiently prov- paid by all of the parties interested, acen under sections 3870_3874, Kentucky Stat- | cording to the rule. utes. In view of the fact that the pleadings Judgment is affirmed, with direction to corand all the evidence in the record sustains rect the taxation of costs as I have above the justness of the claim, and the further | indicated. fact that appellant in her brief admits that the note is a just charge against the lands, this court would not be justified in reversing the judgment of the lower court upon this COHEN V. CITY OF HENDERSON. ground. Moreover, this court has in more than one instance sustained such claims up

(Court of Appeals of Kentucky. Dec. 20, 1918.) on substantially the same kind of proof as 1. MUNICIPAL CORPORATIONS en 265-STREET here presented. No objection was made in IMPROVEMENTS-POWER-SOURCE. the lower court to the claim based on the Generally a municipal corporation, subject note, because of insufficient verification. Re- to constitutional restrictions, may do anything ply was filed and issue joined upon the claim in the way of street improvements which its without objection. Repeatedly this court charter or other statute authorizes it to do, but has held that this question is waived hy in contracting for such work it is limited by the pleading to the claim. In Maynard v. May

terms of the statute under which it proceeds. nard, supra, it is said:

2. MUNICIPAL CORPORATIONS 340STREET

IMPROVEMENTS-CONTRACT. “The proper procedure in raising this question in the trial court is a motion for a rule to

Municipal corporation contract for street require verification of the claim.

improvements must conform to the statute which

Thomas v. Thomas, 15 B. Mon. 178. It cannot be done

authorizes the work to be done. by filing a demurrer to the pleadings, as coun- 3. MUNICIPAL CORPORATIONS 350-STREET sel argue the question was raised by them in IMPROVEMENTS-ILLEGAL CONTRACT- LIABILthe trial court. By filing the demurrer to the ITY OF MUNICIPALITY. pleading, setting up the claim, plaintiff waived Municipal corporations cannot be held liable demand and proof, Lytle v. Davidson (67 S. W. | for costs of street improvements, where the 34] 23 (Ky. Law] Rep. 2262, as does a plea to statute prohibits a municipal corporation from the merits of the claim, Hudson v. Combs, 110 | constructing streets at the cost of the municiKy. 762 [62 S. W. 709]; Gray V. Graziani, pality. 165 Ky. 771 [178 S. W. 1070]."

4. MUNICIPAL CORPORATIONS 374(1) [7] Appellant asserts that there was suffi.

STREET IMPROVEMENTS-LIABILITY OF CITY.

Where statute imposes conditions upon mucient personal property and money in the

nicipal corporation's power to construct strect hands of the administrator, J. M. King, to

s of the administrator, J. M. mmg, to at its own cost, the municipality cannot be made have fully paid off and satisfied the lien liable for street improvements, unless such connote in question, and that it was his duty | ditions are complied with,

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

5. MUNICIPAL CORPORATIONS 374(1) - 112. MUNICIPAL CORPORATIONS 351 STREET IMPROVEMENTS—CITY'S LIABILITY. | STREET IMPROVEMENTS-LIABILITY OF CITY

Statute providing that municipal corporation -ESTOPPEL. cannot be made liable for street improvements, City, by accepting street improvements made unless it shall have the right to enforce the pay- under contract, void because made pursuant to ment of costs against property benefited thereby, Ky. St. § 3459a, which is unconstitutional, was applies only where a corporation has the right not estopped to claim that the work was done and authority to make the improvement at the without a valid contract, not being able to ratify cost of abutting property.

a contract which it had no authority to make. 6. MUNICIPAL CORPORATIONS 374(1)

13. MUNICIPAL CORPORATIONS 350 STREET IMPROVEMENTS-LIABILITY.

STREET IMPROVEMENTS_LIABILITY OF CITY

INVALID CONTRACT. Municipal corporation will be liable to con

Under Ky. St. 88 3449, 3457, and section tractor for street improvements, although con

3290, subsec. 7, city entering into street imtract provided that improvements should be made at the costs of abutting property, where

provement contract, void because made pursu

ant to unconstitutional statute, section 3459a, the corporation has the right to contract for improvements and is not prohibited by statute

and ordinance founded thereon, cannot be held

liable for improvements made under the powers from paying for them; but the property, on account of its nature or ownership, cannot be sub

it had to contract for street improvements other jected to costs, notwithstanding statutory provi

than the supposed powers it attempted to exersion that corporation cannot be made liable for

cise. street improvements, unless it shall have right Thomas, J., dissenting. to enforce payment of costs against property benefited thereby.

Appeal from Circuit Court, Henderson

County, 7. MUNICIPAL CORPORATIONS O374(1) STREET IMPROVEMENTS—LIABILITY.

Action by Joseph Cohen against the City In absence of statute prohibiting municipal- of Henderson. Judgment of dismissal, and ity from improving street at its costs, generally, plaintiff appeals. Affirmed. municipality having power to contract for street Vance & Heilbronner. of Henderson. for improvement, but no authority to make the costs a charge upon abutting property, is prima facie

die appellant. liable to contractor.

B. S. Morris, of Henderson, for appellee.

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8. MUNICIPAL CORPORATIONS O374(1) - HURT, J. The city of Henderson is a city

STREET IMPROVEMENTS-LIABILITY OF Mu- of the third class. In 1912 the General AsNICIPALITY,

sembly attempted to amend section 3459, Ky. City authorized to contract for street im- Stat., which is a part of the charter of cities provement, and not prohibited from paying for of the third class. The attempted amendthem, is liable to contractor, though contract ment is now section 3459a, Ky. Stats. It provided that improvements should be made at provided a very comprehensive plan for the the costs of abutting property, where city hav

construction and reconstruction of the streets ing authority so to do fails to take the proper steps to make the abutting property liable to an

of the cities of that class, upon what is termassessment for the costs.

ed the "ten-year" plan, at the cost of the own

ers of the property abutting upon the streets, 9. MUNICIPAL CORPORATIONS Ow111(1)

and provided for issuing the bonds of the muSTATUTES 63 -- ORDINANCES - EFFECT OF | nicipality, for the costs of the improvement, in UNCONSTITUTIONALITY.

anticipation of the collection of the assessNeither an unconstitutional statute nor ordi- |ments to be made against the property ownnance founded thereon can create any rights or ers. It is gathered from the petition that on bestow any powers.

the 10th day of July, 1912, the common coun

cil of the city of Henderson, adopted an or10. MUNICIPAL CORPORATIONS E350 - dinance, which provided for the construction STREET IMPROVEMENTS-INVALID CONTRACT. of concrete gutters, curbs, and sidewalks,

Ky. St. § 3459a, being unconstitutional, an upon certain of the streets of the city, in acordinance directing mayor to enter into street cordance with the plan provided by section improvement contract under such statute, and 3459a, supra, and directed the mayor to contract entered into pursuant to such ordi

enter into a contract with some one to make pance, are void, and city cannot be held liable

the improvements, as provided in the ordifor improvements made pursuant thereto.

nance. In pursuance to the ordinance, a con11. MUNICIPAL CORPORATIONS O 851 - Con.

tract was entered into between the city, actTRACTS-STATUTES.

ing by the mayor, and the Stratman ConContractors who deal with municipal corpo

crete Company, for doing the work. The rations, in regard to matter provided for by its

contract was in accordance with the ordicharter, are bound to see that charter provisions

| nance, which was referred to and made a part are complied with, and upon failure so to do of the contract. The ordinance provided that must suffer consequences.

the improvements should be made as provided

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

by section 3459a, supra. The work was done appellant insists that, inasmuch as the city in accordance with the ordinance and con- made a contract for the doing of the work tract, and all the requirements of section at the costs of the abutting property, and to 3159a were complied with, which were re- pay for it out of a fund to be raised by as. quired by that act to make the costs of the sessments upon the property, and having ac. improvements a lien upon the abutting prop- cepted the work as having been done accorderty. In accordance with the terms of that ing to the contract, and the property owners statute, the cost of the work was apportioned having refused to pay the assessments, and between the various abutting property own- the city being unable to enforce the payments ers, who having failed to pay the costs with of the assessments, that the city is primarily in 30 days the city executed its bonds in liable, and can and should be required to pay payment of the work, as provided by section the bonds. In support of this contention the 3459a, and delivered them to the contractor. cases of City of Louisville v. Hyatt, 5 B. Mon. The bonds were made payable to bearer, and 199, City of Louisville v. Leatherman, 99 Ky. contained a recitation that they were issued 213, 35 S. W. 625, 18 Ky. Law Rep. 124, in pursuance of the above-mentioned ordi- City of Louisville v. Bitzer, 115 Ky. 359, 73 nance, and by virtue of the power vested in S. W. 1115, 24 Ky. Law Rep. 2263, and Han. the city by the statute, section 3459a, and to cock Co. v. City of Mt. Sterling, 170 Ky. 207, secure their payment the faith and credit of 185 S. W. 856, are cited, but neither of these the city was pledged, as well as a lien on the cases seem to be in point, as will hereafter be abutting property. The appellant became the shown. owner of several of the bonds by purchase (1, 2) As a general rule, a municipal corfrom the contractor or his vendee.

poration, subject to constitutional restricThis court, in the case of Hickman v. tions, may do anything in the way of street Kimbley, 161 Ky. 652, 171 S. W. 176, held that improvements which its charter or other section 3459a, supra, was enacted contrary statute authorizes it to do; but, in contracting to the requirements of section 51 of the Con- for such work, it is limited by the terms of stitution, and was therefore void, and it fur- the statute under which it proceeds, and a ther held that an ordinance enacted for the contract to perform such work must conform construction of a street under that statute to the statute which authorizes the work to was void, because the provisions for the pay- be done. ment under that act could not be disregarded,l (3-8] (1) Where statutory provisions proand the provisions for the construction sus. hibit a municipal corporation from constructtained, since provisions for the payments ing streets at the cost of the municipality, or are such a material part of the ordinance impose conditions upon its power to do so, that it is impossible to separate them from the municipality cannot be made liable in the the other provisions of the ordinance, and as- first instance for street improvements, nor in sume that the improvements would have been the second instance unless the conditions ordered, without the provisions for payment. are complied with. The opinion in that case was followed and (2) Where a statutory provision applies to approved in City of Henderson v. Lieber's a municipal corporation, to the effect that Ex’r, 175 Ky. 15, 192 S. W. 830, wherein it the corporation cannot be made liable for was held that an ordinance similar to the street improvements, unless it shall have the one mentioned above was void, because the right to enforce the payment of the costs common

council was without authority to against the property which receives the bene. enact such an ordinance, and that the costs fits of the improvements, that provision is of improvements made under an ordinance, upheld; but it is held that, where such a under the provisions of section 3459a, did statutory provision prevails, it applies only not create any lien upon the property of the

to cases where the corporation has the right abutting property holders, and that it could

is and that it could and authority to make the improvement at not be subjected for an assessment by virtue the costs of the abutting property, and does of an ordinance under that act.

not apply to cases where the corporation Cohen, alleging in his petition substantially

ing in his petition substantially has the right to contract for the improveas stated above, sued the city of Henderson,

ments, and is not prohibited by statute from and sought to recover of it the amount of his paying for them, but on account of the nabonds, with interest. The city interposed a ture or ownership of the property it cannot general demurrer to the petition as amended, I be subjected to the costs, and in the latter which was sustained, and the action dismiss- state of case the corporation will be liable to ed, and from the judgment, Cohen has ap the contractor, although the contract propealed.

vided that the improvements should be made (a) The petition avers that the ordinance at the costs of the abutting property. under which the work was done and the (3) In the absence of statutory provisions bonds issued is void, and that the bonds can- prohibiting a municipality from improving not be collected from the abutting property the streets at its costs, the general rule is owners, nor can the lien attempted to be that, where a city or town has the power and created be enforced against the property; but authority to contract for a street improve. ment, but has no authority to make the costs [9-11) (b) One of the principles consistentof the improvement a charge upon the abut- I ly adhered to in all the cases is that, before ting property, the corporation is primarily the municipal corporation can be made liable liable to the contractor.

for street improvements, it must appear that (4) Another rule is that, where a munici- the contractor has a valid contract with the pal corporation has authority to contract corporation by which it bound itself to pay for street improvements, and is not pro- for the improvements. To make the contract hibited by statute from paying for them, and valid, the corporation must have the power makes a contract to have the work done at to enter into the contract, and, if possessing the cost of the abutting property, and has the power to make the contract, the requireauthority so to do, but fails and neglects to ments of the statute giving it the power must adopt the proper measures, or to take the have been complied with, and the plan proproper steps to make the abutting property vided by law for the making of the contract liable to an assessment for the costs, the must have been adhered to. The statute in corporation is liable to the contractor, al- the instant case, which authorized the ordithough the contract provided that the im. nance under which the work was done, and provements should be made at the costs of the ordinance itself, are both confessedly the abutting property. Many of the adju- void. The condition is just the same as if dications of this court in regard to street section 3459a of Ky. Stats, had never been improvements, and the liability of the cities attempted to be enacted. An unconstitutionand towns in their corporate capacity for al statute, and an ordinance founded up such the costs of the improvements, have been statute, neither can create any rights nor becontrolled by charter or statutory provisions stow any power. As said in Norton v. Shelapplying to such corporations at the time of by County, 118 U. S. 426, 6 Sup. Ct. 1121, 30 the adjudications, and cause apparent in- L. Ed. 178: consistencies in the adjudications, when not | “An unconstitutional act is not a law: it conread in connection with the statutory or char- fers no rights: it imposes no duties: it affords ter provisions which influenced the decisions; no protection: it creates no office; it is in legal but a reference to the following cases will contemplation * tot as though it had never show that the general principles and rules been passed." above mentioned have been adhered to when the facts of the particular case have brought

Hence the common council was without it within one of the principles above stated: authority to enact the ordinance, and the Guthrie v. City of Louisville, 6 B. Mon. 575 : ordinance, being void, gave the mayor no Craycraft v. Selvage, 10 Bush, 708; Mur- authority to enter into the contract for the phy v. City of Louisville, 9 Bush, 189; Hydes city. Hence the contractor occupied the posiv. Joyes, 4 Bush, 465, 96 Am. Dec. 311; City tion of a volunteer. In Murphy v. City of of Covington v. Dressman, 6 Bush, 210; City Louisville, 9 Bush, 189, the ordinance of the of Louisville y. Nevin, 10 Bush, 550, 19 Am. city required, before the city could be bound Rep. 78; Caldwell v. Rupert, 10 Bush, 180; upon a contract for street improvements, that Preston v. Roberts, 5 Ky. Law Rep. 57; City the contract must be signed by the mayor of Covington v. Smith's Ex'r, 12 Ky. Law Rep. and approved by the board of aldermen and 141; City of Covington v. Wood, 10 Ky. Law the common council. The contract was signRep. 1022; City of Louisville y. Hexagon Tile ed by the mayor and approved by one of the Walk Co., 103 Ky. 552, 45 S. W. 667, 20 Ky. boards, but not by the other. The failure Law Rep. 236; Terrell v. Paducah, 122 Ky to have the contract approved by one of the 331, 92 S. W. 310, 28 Ky. Law Rep. 1237, 5 boards, it was admitted, released the abutL. R. A. (N. S.) 289; City of Covington v. No ting property from liability to pay the costs land & Co., 89 S. W. 216, 28 Ky. Law Rep. of the street improvements; but it was insist314; City of Louisville v. McNaughton, 44 s. ed that, because the assessments failed, the W. 380, 19 Ky. Law Rep. 1695; City of Louis-city became liable, but this court, however, ville v. Meyer, 32 S. W. 290, 17 Ky. Law Rep. held that Murphy did not have any contract 666; City of Louisville v. Leatherman, 99 Ky. with the city, because the contract had not 213, 35 S. W. 625, 18 Ky. Law Rep. 124; City been approved by both of the boards, as the of Louisville v. Bitzer, 115 Ky. 359, 73 S. W. statute required, and hence, having no con1115, 24 Ky. Law Rep. 2263, 61 L. R. A. 434; tract, he was a volunteer, and could not Gleason v. Barnett, 106 Ky. 125, 50 S. W. 67, make the city liable. It was furthermore 20 Ky. Law Rep. 1694; De Board v. Bowl. held in that case that a person who dealt ing Green, 6 B. Mon. 229; Gosnell v. Louis- with a municipal corporation, about a matville, 104 Ky, 212, 46 S. W. 722, 20 Ky. Law ter which is provided for by its charter, is Rep. 519; City of Louisville v. Hyatt, 5 B. bound to see to it that the charter provisions Mon, 199; Trustees of Belleview v. Hohn, are complied with, and must take notice of 82 Ky, 1; Kearney y. City of Covington, 1 what is contained in them, and if he fails to Metc. 345. The cases cited by appellant are do this he must suffer the consequences. in accord with the principles of the others Every person must take notice of the statabove named.

| utes, which now compose the charters of

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