To a petition for rehearing, filed by counsel for appellees,
Judge Pryordelivered the following response of the court:
The act of 1871, approved on the 21st of March, was not referred to on the original hearing. The provisions of that act authorized the council, whenever the city of *215'Covington shall have acquired, by purchase or condemnation, any land or materials for the purpose of opening and establishing, or of widening, throughout the whole or a part of its length, any street, alley, market-space, &c., to ascertain the damages, and collect the same in the manner that other general city taxes are collected upon such property and things within the city as are taxable for general revenue purposes, &c. This act authorized the imposition of the burden on the owner of property within the city without regard to the locality of the improvements and the benefits to be derived by the adjoining owners. Then came along the act of March 6, 1876, by which, for such ■improvements as streets and alleys, the council was empowered to assess a special tax on the land fronting upon the street according to front feet, &c. This amendment to the city charter changed the mode of paying for such improvements, and created a new system in compelling the owners of adjoining lands to pay by reason of the benefits received. The amendment of March 6,1876, was intended to make this radical change for the reason that it provides the mode of imposing the burden, the manner of collection, and all the incidental steps necessary to the acquisition of the property and the making of the improvement. It is argued that as the act of March 21, 1871, is still in force, the council may compel, by reason of its provisions, the owners of the adjoining land who have been specially assessed in this case to contribute with the tax-payers generally to improve a street on the next square, when the adjoining property is as much benefited as that upon which the special assessment has been made. In *216other words,' that the council may adopt either mode of assessment regarding the benefits in the one case and disregarding, them in the other. We do not so construe* the two acts or the powers conferred by either on the-city council. The effect of the act of 1876 is to change the mode of assessment in such cases, and has been adopted by the city council, and such was the legislative purpose. We do not concur with counsel for the city that the city council may adopt either mode, for if these appellees were taxed to pay for a like improvement on adjacent streets, when the benefits were alike- or approximately so, the act of the council would be-in direct violation of the organic law. But it does not' appear that this has been or is being done by the city. What force has the act of 1871 ? It has only this Cases may arise, and often do in the growth of cities,, that streets and alleys are required to be improved, when to do so would, in effect, confiscate the adjoining property. The necessities of the population may demand it, or the improvement of such a character as would suggest at once that no mere local burden should be imposed.
To this extent the act of 1871 stands unaffected by the amendment of 1876, this last amendment applying and providing the mode for the ordinary construction and improvement of the streets of the city:
This court held at the present term in the case of Frantz v. Jacob, * that although the ordinary mode of making such improvements required, by reason of the-*217system adopted by the city for that purpose, that the adjacent property should pay for the improvement made, still the power of the city remained to make an improvement demanded by the necessities of its. population, when, by taxing the adjacent property to pay for it, would, in effect, amount to confiscation. While the council is to judge of these necessities, it must not be an exercise of mere arbitrary power, for when the ordinary mode can be pursued, it must be. followed, else that inequality will exist of which the tax-payer can complain, and for which relief will be granted him by the chancellor. The petition is overruled.
See page525of this volume, The opinion referred to was filed after the opinion in this case was filed, but before the response to petition forrohearing was filed.