that reason the county judge was required to order an election to take place on a day within six weeks after such first Monday,

This was done and the election had on the 27th of August, and Webb, having been elected, was entitled to qualify. The 7th section of article 6 of chapter 37, in providing for the election on the next succeeding first Monday in August, excepts such elections as in that chapter are otherwise allowed. The language of the section is: "Except as in this chapter allowed." The 4th section having required a notice of eight days to be given, the framers of the statute saw that a vacancy might occur within eight days prior to the succeeding first Monday in August, and for that reason provided by the 7th section that when there was not time to give the requisite notice a special election shall be ordered to take place within six weeks after such first Monday. This was one of the exceptions to the mandatory part of section 6, requiring the election to be held on the next succeeding first Monday in August. The provision of the State Constitution found in article 6 of that instrument, authorizing vacancies in certain offices to be filled "until the next regular election in such manner as the General Assembly may provide," evidently means the next regular election for such offices to be held at or after the expiration of the term of office in which the vacancy has occurred. The court below having so adjudged that judgment is now affirmed.

Barnett & Noble, Jackson & Phelps, John Stites and Alex. P. Humphrey for appellant.

Duff Reed and Edward Badger for appellee.

ROCHESTER, &c. v. SLEDGE, &c.

(Filed October 7, 1884.)

1. Road-Establishing for public-The report of viewers made upon an application to establish a public road held in this case sufficiently specific in setting out the metes and boundaries of the road and in stating the public conveniences to accrue therefrom.

Appeal from Allen Circuit Court.

Opinion of the court by Chief Justice Hines.

This is an appeal from an order of the circuit court allowing an application to establish a public road, the application having been first made to the county court and rejected. These appeals are authorized by section 43, article 1, chapter 94, General Statutes.

The principal objection urged to the judgment of the circuit court establishing the road is that the report of the viewers is not sufficiently specific as to metes and bounds, courses and distances, the terminal point, and that they fail to report the conveniences and inconveniences to both the public and private persons over whose lands the road is proposed to be located.

The report of the viewers returned a diagram or plat of the proposed road and in reference to the land of appellant the report recites: "Beginning at a stone on the southwest side of the Bowling Green and Scottsville road, at the letter A, and ran S. 484 W. 41 poles, across the land of W. H. Rochester, to a stake on the land of N. K. Singer," and recited that the establishment of the road would result in some inconvenience and damage to appellant Rochester, but that the damage would be more than compensated for by the advantages that the road would be to Rochester. The terminal point is designated as follows: "Thence with his (Johnson's line) and Pearson's line S. 34 W. 38 poles, S. 50 W. 14 poles, S. 63 W. 32 poles, S. 694 W. 52 poles, S. 75 W. 18 poles, S. 87 W. 14 poles, S. 654 W. 20 poles, S. 11 E. 8 poles to Tramel creek, about one mile.

The object of these provisions of the statute is to give the owner of the land over which the proposed road is to pass information of location in order that there may be an agreement, if there is damage, as to its amount, or that those acting under a writ of ad qued damnum may be able to locate the route and thereby determine the damages.

The cases cited by counsel were under the Revised and previous statutes, which are essentially different from the General Statutes under which this proceeding is had. The Revised Statutes, volume 2, article 1, section 3, chapter 84, provides that the report of the viewers should describe the route laid out "by metes and bounds, and by courses and distances,”

while the General Statutes, article 1, section 3, chapter 94, is "by metes and bounds, and by general courses and probable distances." This alteration was evidently made in the language of the law in view of the strict construction placed upon the former statutes, and with a view of making a substantial compliance with the statute sufficient. Technical compliance with the old statute defeated its object, and, therefore, the alteration by the more catholic statute which protects the right of the citizen, without impairing the right of the public, to free and convenient communication in the discharge of public duties and for private conveniences.

The report of the viewers definitely locates the road as proposed to be run over the land of appellant, even under the old statute, and in accord with the decisions construing that statute. It locates the beginning at a certain point, and from that point gives the course and distance over the land of appellant. The terminal point of the road is also located with technical accuracy by a natural object, "Tramel creek," as it was suggested, in one of the opinions cited, was necessary under the old statute.

Judgment affirmed.

D. W. Wright and McElroy for appellants.
Porter & MeQuown for appellees.

WORTHINGTON v. CITY OF COVINGTON.

(Filed October 14, 1884.)

1. Street improvements - Liability of lot owner-Where the city charter requires all contracts for street improvements to be referred to a committee of the city council, and such a contract was made without that reference, Held-The lot owner is not liable for the cost of the improvement, and the city may be enjoined form collecting for its cost.

2. The city council is sole judge of the necessity of improving a street, and its judgment and assessment thereon can not be reviewed unless that power has been expressly given (as in this case) to another tribunal.

Appeal from Kenton Chancery Court.

Opinion of the court by Judge Holt.

This appeal involves the right of the appellee, the city of Covington, to compel the appellant, Henry Worthington, to pay an assessment for the improvement of one of its streets, abutting upon his property.

Having enjoined its collection, and his injunction having been dissolved in part by the court below, he now urges various reasons for the reversal of the judgment; but as one of them is in our opinion decisive of the matter, it is needless to notice the others.

It is, however, proper to remark that while the council or municipal legislature of a city can not exercise such an arbitrary and unlimited power as to amount to legislative spoliation, yet the necessity and propriety of improving a street is a matter in its discretion; and if an assessment is made by it for such a purpose it is final unless the power has expressly been given to some tribunal to review it; and upon the former hearing of this case the attention of the court was not called to the fact that by an act of the legislature of February 24, 1865, the power had been conferred upon the courts to correct, equalize and regulate assessments made by the council of the city of Covington upon property in that city for street improvements; and that, therefore, the lower court had properly exercised this power. (Acts of 1865, volume 1, page 412.)

Section 12 of an act to amend the charter of the city of Covington, approved March 9, 1868, reads thus: "Hereafter, before any contract shall be made by the council for any work to be done in the construction or improvement of any street or alley and other public improvement in the city of Covington, the proceedings of the council with reference thereto shall be referred to the committee on law, in conjunction with the city attorney, who shall examine said proceedings and shall ascertain and report to the council whether said proceedings are regular and in accordance with the provisions of the charter and amendments thereto, and whether the city will be liable for the cost of said construction or improvement." (Acts of 1867-8, volume 2, page 431.)

In the case under consideration this was not done; and a contract made by a municipal corporation for the improvement of a street must be executed in conformity to the statute. It is the agent of the law and authority delegated to it must be strictly pursued.

The power to make the improvement and then compel the lot owner to pay for it while not entirely unlimited, is of an absolute character. It is liable to abuse, and may in some cases be oppressive.

It exists by virtue of the statute only, and not by the common law.

It can not be enlarged by implication; and the corporation can not compel payment to it by the property owner if it has proceeded in violation of or not in accordance with the law from which it alone derives its power. (Broadway Baptist Church, &c. v. McAtee, &c., 8 Bush, 508; Murphy v. City of Louisville, 9 Bush, 189.)

In the case of Woods v. The City of Covington (MS. opinion, June 25, 1881), 3 Ky Law Rep., 85, the contractor sued both the city and the lot owner for the contract price of a street improvement, and this court held that the city council had no power to make the contract without first referring their proceedings to its law committee; and that the provision of the charter above quoted was mandatory and not merely directory.

Public policy as well as the protection of private property demanded this conclusion.

The manifest object was to prevent improvident legislation by the city council; to create a circumspect body that would stand between the street contractor and the city treasurybetween the lot owner and the tax collector-between the citizen and the almost absolute power of the city council, and see that no wrong was committed.

The council not having taken the steps which gave it a right to contract, or to create a lien upon the lots of the appellant, for the cost of the improvement in question, and which action was a condition precedent to the exercise of its power to do so,