Opinion ox the court by
JUDGE HOBSON —
Affirming.
These three appeals are heard together. They are prosecuted from judgments of the Jefferson circuit court enforcing liens for the improvement of three sections of Transit avenue, in Louisville,. Ky. The first objection made relates to the filing of the drawings and specifications of the [910]*910work with the board of public works, according to section 2829, Kentucky Statutes: “'Whenever said board shall order any work to be done which either by order of said board or according to law, is to be performed by ■ independent contract, said board shall prepare and place on file in the office of said department complete drawings and specifications of said work. Thereupon said board shall cause a notice to be published in one daily or weekly newspaper of general circulation in said city, once in each week for two weeks, informing the public of the general nature of the work, of the fact that the drawings and specifications are on file in said office, and of the nature and extent of the bond or security required, and calling for sealed proposals for said work by a day not earlier than ten days after the first of said publications.” . It is insisted that the plans and specifications are shown by the proof not to have been filed with the board as required by the statute before the publication of the notice. We have carefully examined the- proof, and are of the opinion that it sustains the conclusion, of the chancellor on this point. While there is some testimony from which it might be inferred that the papers were not filed until the day of the letting, there is positive testimony of one of the bidders that they were filed and he examined them ten days before the letting. Two other bidders testify ■to examining them five days before the letting. No bidder testifies to being unable to see them. There was a number of bidders, the work was let unusually low, and there is nothing to show that' any of the bidders failed to understand what was proposed. The law presumes the officers .did their duty, and if they failed to do it in this case' positive proof of it could have been made. The presumption of regularity is not • overthrown by the evidence.
It is also insisted that the copies filed wdth the petition [911]*911are not properly attested by the comptroller. Some of them read thus: “A true copy. Attest: W. M. Finley, O. B. 0. Attest: John H. Hancock, Comptroller.” On some of them, ■thewords “A true copy” is omitted before the signature of Finley. It is insisted that the comptroller does not attest these papers as true copies. We think it is evident that this is the intent of the attestation, of Hancock. No objection appears to have been made to the attestation in the trial court, and we do not think the question should be made for the rirst time in this court. In the petition the papers are alleged to be true copies, and this is not denied in the answer.
It is also insisted that the amount adjudged against some of the proper iy is more than its value, and amounts to spoliation. The act of March 4, 1867, entitled “An act in relation to the improvement of . streets in cities and towns-of this ¡átate,” is relied on. the act reads as follows:
“Sec. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, that no city or town shall, by virtue of any authority it has to improve its streets alt the cost of the owners of ground fronting thereon, have authority to charge the ground or the owner thereof, on a count of such improvements, with more than one-half the value of such ground. This act shall not apply to Barren county.
“Sec. 2. This act shall be in force from its passage. 1 Acts 1867, p. 64.
Section 356 of the Constitution provides for the classification of the cities of the State and for their government by general laws. Pursuant to it the present statutes on this subject were enacted. By section 1 of the schedule all laws inconsistent with such provisions of the. constitution as required legislation to enforce them remained in force not [912]*912longer than six years after its adoption, on September 28, 1891. The act of 1867 was a local or special act, in the sense that it did not apply to the. whole State, and was inconsistent with-the provisions of the Constitution looking to the government of all the cities in the State by general laws, according to their classification.' It was therefore not in force, at least, after six years from the adoption of the Constitution, when these proceedings were had.
The proof as to the value of the property and the extent it is benefited is conflicting, but the chancellor knew the ground and the local situation, and some weight should be given his finding. We are the more inclined to do this because it is conceded that the property holders wanted the ordinance passed and the improvement made; that things were hurried up for them, and that they still would have paid without objection if the street had been properly metaled, and the city had carried out the plan, and improved a gap between them and one of the thoroughfares of' the city. It is clear the contractors are responsible for none of these things. They could not control the council'or the board of public works. They did their "work according to their contract, and the trouble is in the specifications, not in them. The specifications were changed contrary to the judgment of the city engineer in the interest of the property holders if not at their wish, and the trouble now complained of seems to be due in a large measure to an effort to construct a cheap street. The property lay in the outskirts of the city, it was not available for sale in lots for building purposes 'without the improvement of t£he street, and some weight must be given to what seems to have been the common'judgment of the property owners as to their interest in the premises.
[913]*913We see no objection to the manner in which the cost of the improvement was apportioned by the city council against the property owners. The mode of apportionment seems to have followed the statute.
Judgment affirmed.
Eesponse by Judge Hobson overruling petition of appellant for rehearing:
In Preston v. Roberts, 75 Ky., 587 (5 B., 57), this court said: “All municipal assessments are based on the ground that the property subjected to assessment is benefited by the improvement for which the assessment is made, and neither the Legislature of the State nor of the municipality can constitutionally subject property not actually or presumptively benefited by an improvement to assessment to pay the cost of such improvement. It is oiften difficult and sometimes impossible, to determine tbe> exact limit to which such benefits extend, but from the very nature of the subject there must be authority somewhere to' decide that question; and there is perhaps no safer mode of dealing with a question environed by such difficulties than to confide the power to the local government, to be exercised subject to supervision by the courts, where the peculiar facts of each case can be examined, and the controversy ¡determined by those rules and principles which have always governed courts in dealing with questions of assessment and taxation. Nor do we concur with counsel that the power delegated to the council to designate the 'depth to which an assessment shall extend, because legislative, is therefore beyond the control of the courts.
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Opinion ox the court by
JUDGE HOBSON —
Affirming.
These three appeals are heard together. They are prosecuted from judgments of the Jefferson circuit court enforcing liens for the improvement of three sections of Transit avenue, in Louisville,. Ky. The first objection made relates to the filing of the drawings and specifications of the [910]*910work with the board of public works, according to section 2829, Kentucky Statutes: “'Whenever said board shall order any work to be done which either by order of said board or according to law, is to be performed by ■ independent contract, said board shall prepare and place on file in the office of said department complete drawings and specifications of said work. Thereupon said board shall cause a notice to be published in one daily or weekly newspaper of general circulation in said city, once in each week for two weeks, informing the public of the general nature of the work, of the fact that the drawings and specifications are on file in said office, and of the nature and extent of the bond or security required, and calling for sealed proposals for said work by a day not earlier than ten days after the first of said publications.” . It is insisted that the plans and specifications are shown by the proof not to have been filed with the board as required by the statute before the publication of the notice. We have carefully examined the- proof, and are of the opinion that it sustains the conclusion, of the chancellor on this point. While there is some testimony from which it might be inferred that the papers were not filed until the day of the letting, there is positive testimony of one of the bidders that they were filed and he examined them ten days before the letting. Two other bidders testify ■to examining them five days before the letting. No bidder testifies to being unable to see them. There was a number of bidders, the work was let unusually low, and there is nothing to show that' any of the bidders failed to understand what was proposed. The law presumes the officers .did their duty, and if they failed to do it in this case' positive proof of it could have been made. The presumption of regularity is not • overthrown by the evidence.
It is also insisted that the copies filed wdth the petition [911]*911are not properly attested by the comptroller. Some of them read thus: “A true copy. Attest: W. M. Finley, O. B. 0. Attest: John H. Hancock, Comptroller.” On some of them, ■thewords “A true copy” is omitted before the signature of Finley. It is insisted that the comptroller does not attest these papers as true copies. We think it is evident that this is the intent of the attestation, of Hancock. No objection appears to have been made to the attestation in the trial court, and we do not think the question should be made for the rirst time in this court. In the petition the papers are alleged to be true copies, and this is not denied in the answer.
It is also insisted that the amount adjudged against some of the proper iy is more than its value, and amounts to spoliation. The act of March 4, 1867, entitled “An act in relation to the improvement of . streets in cities and towns-of this ¡átate,” is relied on. the act reads as follows:
“Sec. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, that no city or town shall, by virtue of any authority it has to improve its streets alt the cost of the owners of ground fronting thereon, have authority to charge the ground or the owner thereof, on a count of such improvements, with more than one-half the value of such ground. This act shall not apply to Barren county.
“Sec. 2. This act shall be in force from its passage. 1 Acts 1867, p. 64.
Section 356 of the Constitution provides for the classification of the cities of the State and for their government by general laws. Pursuant to it the present statutes on this subject were enacted. By section 1 of the schedule all laws inconsistent with such provisions of the. constitution as required legislation to enforce them remained in force not [912]*912longer than six years after its adoption, on September 28, 1891. The act of 1867 was a local or special act, in the sense that it did not apply to the. whole State, and was inconsistent with-the provisions of the Constitution looking to the government of all the cities in the State by general laws, according to their classification.' It was therefore not in force, at least, after six years from the adoption of the Constitution, when these proceedings were had.
The proof as to the value of the property and the extent it is benefited is conflicting, but the chancellor knew the ground and the local situation, and some weight should be given his finding. We are the more inclined to do this because it is conceded that the property holders wanted the ordinance passed and the improvement made; that things were hurried up for them, and that they still would have paid without objection if the street had been properly metaled, and the city had carried out the plan, and improved a gap between them and one of the thoroughfares of' the city. It is clear the contractors are responsible for none of these things. They could not control the council'or the board of public works. They did their "work according to their contract, and the trouble is in the specifications, not in them. The specifications were changed contrary to the judgment of the city engineer in the interest of the property holders if not at their wish, and the trouble now complained of seems to be due in a large measure to an effort to construct a cheap street. The property lay in the outskirts of the city, it was not available for sale in lots for building purposes 'without the improvement of t£he street, and some weight must be given to what seems to have been the common'judgment of the property owners as to their interest in the premises.
[913]*913We see no objection to the manner in which the cost of the improvement was apportioned by the city council against the property owners. The mode of apportionment seems to have followed the statute.
Judgment affirmed.
Eesponse by Judge Hobson overruling petition of appellant for rehearing:
In Preston v. Roberts, 75 Ky., 587 (5 B., 57), this court said: “All municipal assessments are based on the ground that the property subjected to assessment is benefited by the improvement for which the assessment is made, and neither the Legislature of the State nor of the municipality can constitutionally subject property not actually or presumptively benefited by an improvement to assessment to pay the cost of such improvement. It is oiften difficult and sometimes impossible, to determine tbe> exact limit to which such benefits extend, but from the very nature of the subject there must be authority somewhere to' decide that question; and there is perhaps no safer mode of dealing with a question environed by such difficulties than to confide the power to the local government, to be exercised subject to supervision by the courts, where the peculiar facts of each case can be examined, and the controversy ¡determined by those rules and principles which have always governed courts in dealing with questions of assessment and taxation. Nor do we concur with counsel that the power delegated to the council to designate the 'depth to which an assessment shall extend, because legislative, is therefore beyond the control of the courts. No one will question the power of the Legislature of the State to declare what shall be taxed and the rate of taxation; yet no one will at this day [914]*914deny that the courts have the power to examine statutes imposing exactions upon citizens under the name of taxation, and decide whether such exactions are in fact taxes, or mere spoliations under the guise of taxation. This doctrine has been held by this court in an unbroken line of cases, commencing as early as Sutton’s Heirs v. City of Louisville, 5 Dana, 28, decided in 1887, down to the case of Courtney v. Same, 12 Bush, 419, decided at the last term. Jf, then, the courts can and do examine into exactions levied upon the citizen or upon, his property by the Legislature, and declare such exactions illegal and void, a> fortiori they may make similar inquiries and decisions when assessments are made by a municipal government, injustice' and oppression are quite as likely to result from the arbitrary designadon of tax districts by the Legislature of the State as from the making of such, districts by municipal governments, and the difficulty of obtaining relief in, the former case is necessarily much greater than in the latter.” See, to same effect, Preston v. Rudd, 84 Ky., 150 (7 R., 806); Nevin v. Roach, 86 Ky., 493 (9 R., 819) 5 S. W., 546; James v. City of Louisville, 19 R., 447 (40 S. W., 912); Barfield v. Gleason, 111 Ky., 491 (23 R, 128), (47 S. W., 964). The case of Bullitt v. Selvage, (20 R., 509) (47 S. W., 255), is not inconsistent with these cases or the rule they lay down. In that case as here, the proof was conflicting, and this court declined to disturb the chancellor’s finding on the facts. The opinion delivered in the'case recognizes the rule announced in the cases referred to, and on a reconsideration of the case, for the reasons given in the opinion, we think the rule inapplicable here.
Petition overruled.