Response by
JUDGE DuRELLE,overruling petition for REHEARING.
A. new question is presented by petition for rehearing. By the act for the government of cities of the first class (section 2835, Kentucky Statutes) it is provided: “The cost *597of making sidewalks, including curbing, whether by original construction or reconstruction, shall be apportioned to the front feet as owned by the parties, respectively, fronting said improvement, except that each corner lot will pay the cost of its sidewalk intersection.” The ordinance and contract under which the improvement sued for in this case was made included curbing, and it is therefore insisted on behalf of the c-itj' that the judgment must be reversed as to the cost of the curbing, although, as decided by the court, the work was work of reconstruction. There is some apparent .conflict between the section quoted and section 2833, the latter part of which was introduced for the first time in the act of March 19, 1898: “When the improvement is the original construction of any street, road, lane, alley or avenue, such improvement shall be made at the exclusive cost of the owners of lots in each fourth of a square, to be equally apportioned by the board of public works according to the number of feet owned by them respectively; and in such improvements the cost of the curbing shall constitute a part of the cost of the construction of the- street or avenue and not of the sidewalk.” It therefore appears that, at least since the adoption of the newr act, it was not by the Legislature considered essential that curbing should be regarded as part of' the sidewalk, nor that it must invariably be apportioned in proportion to the number of front feet of the abutting property, for the new section requires that when laid down in connection with the original construction of a street, it shall be treated as a part of the cost of the roadway, and apportioned in proportion to the num- ✓ ber of square feet in the quarter squares adjacent to the improvement; and, independently of the legislative construction by the act of 1898, the court hasi reached the *598conclusion that section 2835 applies only when a sidewalk, including curbing, is either constructed or reconstructed; and that where, as in the case at bar, there is no construction of sidewalk provided for, but the ordinance and contract provide for an improvement of the carriageway “by grading, curbing, and paving,” etc., the curbing is a part of the improvement of the carriageway, and, if the work is reconstruction, must be done at the cost of the city.
The petition is therefore overruled.
This response applies also to the .petition in the case of Railroad Co. v. Nehan (23 R., 889) 64 S. W., 457.