er is unauthorized, and that the sewer on Second street, where abutted by their lot, is larger than that connecting with it. As to the first contention it is only necessary to say that section 3706, Kentucky Statutes, confers upon the board of trustees of a town of the sixth class power to construct sewers as well as streets and also provides that the expense incurred in doing so may be paid by a local assessment upon abutting property, not exceeding 50 per cent. of the value of the ground, after such improvement is made, excluding the value of the buildings and other improvements upon the property so improved. It is not claimed by appellants that the assessment, both for the cost of constructing the street and sewer, exceeds 50 per cent. of the value of the ground assessed, after the exclusion of the buildings and other improvements upon the property. The plan of paving the streets included the construction of sewers for carrying off the surface water. It appears that in some of the streets the dimensions of the sewer pipe are smaller than in others, but where this is so it was, according to the testimony of competent engineers and others, appearing in the record, indispensably necessary to the work of paving the street; and, while the sewer in the particular street complained of by appellants may be somewhat larger than that connecting with it, this fact affords no evidence that the work was defectively performed, or that it could otherwise have been done, consistent with the work of paving. It is well settled in this jurisdiction that the plan or method of improvement, as well as the necessity therefor, is a matter solely within the discretion of the legislative body, whose discretion in respect thereto is beyond review by the courts, in the absence of a showing of fraud or corruption upon the part of that body in the adoption or execution of the plan. In the recent case of Town of Russell v. Whitt, 161 Ky. 187, 170 S. W. 609, one of the complaints made by the property owner was that the construction of the street abutting his property failed, in certain particulars therein alleged, to conform to the contract under which the work of construction was to be performed. In overruling that complaint we said: S. W. 1028, Ann. Cas. 1912D, 265]; Newport v. Silva, 143 Ky. 704 [137 S. W. 546]." [4, 5] It is also insisted for appellants that a number of the items which enter into the apportionment for the work of improvement done were originally embraced in a contract for the same construction, let to J. H. Francisco, and which the appellee town, upon his insolvency, completed, and that such items are not proper charges in the assessment against their property. It appears that the work of construction, or a part of it, was originally let to Francisco, that he became insolvent, and by reason thereof the town, acting under advice of its counsel, made a settlement with Francisco's sureties, accepting a specified sum by way of damages for his breach of the contract, which sum was applied to the further cost of the work; that the town took charge of the work and completed it without advertising for further bids. The work in question to the extent indicated having been done by the town itself, the provision of its charter, requiring that contracts involving expenditures of more than $100 · should not be made by municipalities except through competitive bidding, it seems to us, has no application. Under the embarrassing circumstances attending the failure of Francisco and his violation of the contract, the town could have relieved itself from the dilemma in no other way than that employed, and in so doing they minimized the loss to the greatest degree possible. We think it fairly apparent that this action of the town did not increase to an appreciable extent the cost to appellants or other property owners, of the entire work of construction, and it is also a well-recognized rule of law in this jurisdiction that the burden is on the property owner to show that a wrong basis of apportionment was followed, and he must allege and prove facts showing such to be the case, and that under the proper method of apportionment he would be required to pay less. Barret v. Stone, 52 S. W. 947, 21 Ky. Law Rep. 669; Chawk v. Beville, 56 S. W. 414, 21 Ky. Law Rep. 1769. [6] The complaint of appellants that the work performed by the Dunn Construction Company under its contract with the city had been originally let to Francisco at a lower price is, we think, equally unavailing. It is true that the Dunn Construction Com "The complaint made in the petition that the construction of the street abutting appellee's property failed, in the particulars therein alleged, to conform to the contract, may be eliminat-pany, under its contract, did some paving ed from the case, because the work as com- work upon certain streets where paving work pleted was admittedly accepted by appellant's had previously been let to Francisco, but board of trustees; and their judgment is con- the work performed by the Dunn Construcclusive in the absence of a showing that they were guilty of fraud or mistake. This rule is stated in the case of Creekmore v. Central Construction Co., 157 Ky. 336 [163 S. W. 194] as follows: "The defendants pleaded in their answers that the work [street construction] was not done in accordance with the contract, and of an ordinance directing the paving of cerwas in several respects defective. But the coun- tain of the streets upon a plan contained in cil had regularly accepted the work, and their the contract let to Francisco, concluded, aftaction is conclusive upon the property owner in er the failure of the latter, to do the work the absence of fraud and collusion. Hender tion Company was a different work, under a different plan and involving larger territory, than that covered by the Francisco contract. The board of trustees, following the passing son v. Lambert ([14 Bush.] 77 Ky.) 25; Reuter according to a different plan and different v. Meacham Contracting Co., 143 Ky. 557 [136 system of drainage, and covering other streets than those included in the contract of Fran- ed to supply their stock with drinking water, cisco. In view of this change of plan and was diverted elsewhere, which resulted in the default of Francisco in his contract, the deprivation to appellants of the use of which the town completed as before stated, the water; (2) that there was such a defecthe board of trustees, by proper ordinance, repealed the former ordinance under which the contract was let to Francisco, and adopted another, requiring that the larger work of construction be done according to the changed plans, the contract for which was let to the Dunn Construction Company as the lowest and best bidder. In Horne, etc., v. Mehler, 64 S. W. 918, 23 Ky. Law Rep. 1176, which was an action to recover an assessment for street construction as in this case, the property owners pleaded that one J. M. McNaughton entered into a contract with the city to do the work in question and gave bond, but that without reason or right this contract was canceled by the city and a new one made with one Gleason, by which the cost of the work was increased 50 per cent. They prayed that the amount of the work assessed against them in favor of Gleason be abated to that extent, but this complaint, upon being considered by the court, was held insufficient to constitute a defense. tive construction of the sewer in the street in front of their property as prevented a connection with it by a private sewer from their residence; (3) that by reason of appellee's abandonment of the contract with Francisco and the letting by it of the contract to the Dunn Construction Company, the cost of the entire work of construction was so increased as to unduly enlarge the apportionment of the cost imposed upon the property of appellants. It may here be remarked that if appellants' counterclaim could be relied on, the above items of damage would not be recoverable upon the record presented. In the first place, the exclusive control given to the authorities of a municipality over its streets empowers them to fix the grades of the streets without liability for any damages occasioned thereby. The only instances in which the municipality can be made liable in damages to the abutting property owner from the establishing of the original grade of a street are such as result from such a In Gibson, etc., v. O'Brien, etc., 6 S. W. 28, negligent doing of the work as will interfere 9 Ky. Law Rep. 639, it was held: "That a prior ordinance had been passed *** to do the work for less money constitutes no defense. That ordinance had been repealed, and, if not, the failure of the city to abide its contract under it is with the party to the contract who has sustained damages by its breach; and, besides, reasons deemed sufficient by the city council existed why that contract should not be carried out." It appears from the record that the work of street and sewer construction here involved was done under three ordinances and as That under an ordinance of June 18, 1906, was commenced by Francis many contracts. co and completed by the appellee town. The sewers were constructed by C. P. Sanburn under an ordinance of the same date and a contract made by him with the town. The paving of the streets was done by the Dunn Construction Company, by contract with appellee authorized by an ordinance of April 1, 1907. In our opinion, none of the matters set up by the appellants' answer in resistance of the assessments sought to be enforced against their property constitute a valid defense; hence they were properly rejected by the circuit court. with the owner's use of his property. City of Owensboro v. Hope, 128 Ky. 524, 108 S. W. 873, 33 Ky. Law Rep. 375, 15 L. R. A. (N. S.) 996; Ewing et al. v. City of Louisville, 140 Ky. 726, 131 S. W. 1016, 31 L. R. A. (N. S.) 612. the benefit of the bondholders, against whom This action was instituted by appellee for the claim to damages asserted by appellants cannot be maintained. The assessment is in the nature of a tax imposed and apportioned against appellants' property by appellee in its governmental capacity for a public improvement. In enforcing its collection appellee is acting as the trustee of the bondholders, and, as said in 28 Cyc. 1161: "The fact that an abutter has a remedy against the city for damages from change of grade does not affect his liability for a paving assessment." In the same volume, on page 1229, it is further said: "In an action to enforce a special assessment, defendant may not set up a counterclaim against the city or the contractor." And again on the same page: "Damages for injury to property against which an assessment is levied may not be set up as a counterclaim in an action to enforce the assessment." [7] Having thus disposed of the matters of defense relied on by the appellants, as The opinion in Bodley v. Finley, 111 Ky. their answer was made a counterclaim, it 618, 64 S. W. 439, 23 Ky. Law Rep. 851, is now becomes necessary to determine wheth- decisive of the question under consideration. er a counterclaim can be pleaded or relied In that case the city of Louisville had orderon by the appellants in this case. The three ed a street improved, and issued apportionitems of damages included in the counter- ment warrants which were delivered to the claim are: (1) That by the construction of contractor. Suit was brought by the conthe street and sewer in front of their resi- tractor to enforce the lien existing by virtue dence property a stream that ran through of the warrant. The property holder sued latter, which he asked to be permitted to set off against the assessment against his property, due upon the apportionment warrant. This court held that the note, under the circumstances of that case, was a proper matter of set-off, but it is declared by the opinion that a set-off, or counterclaim such as is relied on in this case, cannot be maintained in a similar action brought by a municipality. It is therein said: prospective contractor indebted to one or more abutting property holders might either refrain would make if such set-off were not allowed. from bidding or make a higher bid than he This objection does not seem to us very forcible, for we must assume that each contractor knows of the existence of all legal demands against him, and we cannot assume that he intends to avoid their payment. We reach the conclusion, therefore, that on proper showing a set-off may be allowed against a claim for street improvement in such cases as it would be allowed against the assertion of other liens upon property not having their origin in the exercise of governmental power." In Board of Council City of Frankfort v. Brislan, 126 Ky. 477, 104 S. W. 1199, 32 Ky. Law Rep. 377, it was held that an abutting property holder could set up a counterclaim for damages against the city in an action brought by the latter to enforce an apportionment warrant lien against his property, but in the response to a petition for rehearing, following the opinion, it is said: After "This brings us to a consideration of the question whether a set-off or counterclaim can be pleaded against a suit upon an assessment for local improvement. In Purdy v. Drake, 32 S. W. 939, 17 Ky. Law Rep. 819, the question was presented, but not decided, as the set-off there attempted to be pleaded was not sustained by the proof. In Dill. Mun. Corp. § 810, it is said: 'As to agreements between the corporation and a contractor to do the work the abutters or property owners on whom the expense falls are not parties, but are brought into direct relation with the proceeding for the local improvement for the first time when the assessment is made. An assessment is a tax levied by the corporation upon property to defray the expenses of "In a petition for rehearing the point is made, the improvement, and the suit to collect it on behalf of appellant, that appellee should not (though brought by the contractor under au- have the right to assert, as against the city's thority given for that purpose) is not the subject claim for street improvements, the counterclaim of set-off or counterclaim. The cases cited in for damages. The improvement was not made support of the text above quoted are Califor- by the city, but by a contractor, and the injury nia cases, to the effect, in general, that such an and resulting damage to appellee's property, if assessment is a tax levied by the corporation any, was committed by the contractor. upon certain property to defray the expenses of completing the contract, the contractor assigned the improvement of a street adjacent to the his claim to appellant, and the rule that would the improvement of a street adjacent to the deny a property owner the right to assert a property.' Said the court, in Himmelmann V. counterclaim or set-off against the city, if the Spanagel, 39 Cal. 393: The origin, obligatory force, and whole nature of a tax is such that work had been done by it, and it was seeking to it is impossible to conceive of a demand that assert its lien, does not apply. As assignee of it is impossible to conceive of a demand that the contractor's claim, the city occupies no betmight be set off against it, unless expressly so ter position than the contractor, and appellee authorized by statute. No case has been cited, and probably none can be found, which authoriz- can set up against it any claim for damages es a defendant, when sued for a municipal as- that he could have asserted against the contracsessment or tax, to set up a counterclaim.' Un- 19. The doctrine that the property owner may tor. Kentucky Statutes, § 474; Civil Code, § doubtedly, this reasoning applies with full force, rely upon a set-off or counterclaim in a suit by not only to cases of general taxation, but also to cases where the municipality is asserting a contractor is expressly decided in Bodley v. against a citizen a claim for a special assess-Finley, 111 Ky. 618, 64 S. W. 439, 23 Ky. Law Rep. 851. The petition for rehearing is ment for local improvement, for which it has overruled." paid, or become bound to the contractor. On grounds of public policy, the sovereign, in the exercise of the power of taxation for governmental purposes, must not be compelled to stay its proceedings in order to adjust its indebtedness to a citizen. And in this state, while we hold that these special assessments are not included under the designation of taxation in certain constitutional provisions, we nevertheless recognize that their imposition is an exercise of the sovereign power of taxation. Richardson v. Mehler [111 Ky. 408] 63 S. W. 957 [23 Ky. Law Rep. 917]. But is any public policy violated in permitting a set-off against the claim The judgment appealed from dismissed of a contractor in whose favor this governmental appellants' counterclaim, enforced the appelpower has been exercised? In such case a con- lee's apportionment liens, each as to the proptract is entered into by the municipality, on behalf of the abutting property holders, with erty against which it was asserted, and dia contractor, for the making of the improve- rected the sale of a sufficiency of each parcel ment. Under the statute this is held to give the to satisfy the lien against it. There is nothcontractor a lien upon such property for the contract price of the work. If, when he seeks ing in the record conducing to show any to enforce his lien, the property holder is per- inequality in the assessments as made by the mitted to set off a demand against him, this appellee's board of trustees for the cost of does not in any wise interfere with the exer- the street and sewerage construction; and, cise of the governmental power, nor with the progress of the improvement. This claim is not as the cost of the improvements apportioned one by the government, or by the municipality to appellants' property seems no greater than in the exercise of delegated governmental power. the benefits conferred, and the record disclosIt is a private claim, for the enforcement of es no error that we regard prejudicial to which a statutory lien is given. The only It is manifest from the foregoing authorities that this court has fully recognized the doctrine that the property holder cannot, in a state of case such as is here presented, assert a counterclaim or set-off against the municipality, in an action brought by the latter to enforce a lien for the payment of an apportionment warrant for a street improvement. ground of public policy against the allowance their substantial rights, the judgment is LILLIENKAMP v. RIPPETOE. (Supreme Court of Tennessee. Oct. 26, 1915.) HUSBAND AND WIFE 205-ACTIONS FOR mm TORTS-STATUTORY PROVISIONS. Neither Shannon's Code, § 6470, making one committing an assault and battery upon his wife for any cause whatsoever guilty of a misdemeanor, nor Pub. Acts 1913, c. 26, providing that married women are thereby fully emancipated from all disability on account of coverture, that marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition, or disposition of property, or as to her capacity to make contracts, and do all acts in reference to property which she could lawfully do if she were not married, but that every married woman shall have the same capacity to acquire, hold, control, and dispose of property and to make any contract in reference thereto and to bind herself personally, and to sue and be sued as if she were not married, abrogates the common-law rule that one spouse cannot sue the other for a tort committed during the marriage, as it must be assumed that, if it had been the purpose of the Legislature to change this rule, such purpose would have been clearly expressed, or would have appeared by necessary implication. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 744, 748-755, 970; Dec. Dig. 205.] Certiorari to Court of Civil Appeals. Action by Sara A. Lillienkamp against W. T. Rippetoe. A judgment of dismissal was affirmed by the Court of Civil Appeals, and plaintiff brings certiorari. Affirmed. Green, Webb & Tate, of Knoxville, and McCanless, Coleman & Taylor, of Morristown, for plaintiff. W. N. Hickey, of Morristown, for defendant. held in this state that neither spouse could maintain an action against the other for torts committed by one against the other during Coverture. The holding was said to rest in part upon their unity by virtue of the marriage, which was said to preclude one from suing the other at law, and in part it was said to rest upon the respective rights and duties involved in the marriage relation. McKelvey v. McKelvey, 111 Tenn. (3 Cates) 388, 77 S. W. 664, 64 L. R. A. 991, 102 Am. St. Rep. 787, 1 Ann. Cas. 130. This holding is supported by a practically unanimous current of authority. Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27; Schouler's Domestic Relations, § 52 (4th Ed.); Cooley on Torts (2d. Ed.) §§ 223-233; 21 Cyc. 1519, 1520; Thompson v. Thompson, 218 U. S. 611, 31 Sup. Ct. 111, 54 L. Ed. 1180, 30 L. R. A. (N. S.) 1153, 21 Ann. Cas. 921; Strom v. Strom, 98 Minn. 427, 107 N. W. 1047, 6 L. R. A. (N. S.) 191, 116 Am. St. Rep. 387, and note; Freethy v. Freethy, 42 Barb. (N. Y.) 641; Schultz v. Christopher, 65 Wash. 496, 118 Pac. 629, 38 L. R. A. (N. S.) 780; Schultz v. Schultz, 89 N. Y. 644; Peters v. Peters, 156 Cal. 32, 103 Pac. 219, 23 L. R. A. (N. S.) 699; Bandfield v. Bandfield, 117 Mich. 80, 75 N. W. 287, 40 L. R. A. 757, 72 Am. St. Rep. 550; Libby v. Berry, 74 Me.. 286, 43 Am. Rep. 589; Phillips v. Barnett, 1 Q. B. D. 436 (English). In some of the cases cited above the insistence was made that, the marriage relation having been terminated by the divorce, the right of action revived, having been merely suspended during coverture; but in reply it was said: "That the error in this insistence was in supposing that a right of action ever existed; that there was no civil remedy either during or after be redressed." Phillips v. Barnett and Abbott coverture, because there was no civil right to v. Abbott, supra. BUCHANAN, J. The only question necessary to be decided is whether a divorced can maintain against her former husband an action for damages resulting from an assault and battery committed by him upon her person after the passage of See, also, McKelvey v. McKelvey, supra. chapter 26 of the Acts of 1913, and while We do not understand plaintiff's brief to they sustained toward each other the rela-question the rule of the common law, as tion of husband and wife; the action having above set out. Her insistence is that the been instituted after the divorce, and within rule of the common law was abrogated by one year after the date of the battery. the following statutes of this state: The case is before us on plaintiff's petition for certiorari, seeking to reverse the judgment of the Court of Civil Appeals, which affirmed the judgment of the circuit court by which plaintiff's suit was dismissed at the point of a demurrer interposed by defendant. Beyond all question, under the common law as it was in force in this state prior to the passage of the act of 1913, supra, such an action as this could not have been maintained. It was a fundamental principle of the common law that by marriage husband and wife became one. Her existence as a legal unit became merged into that of the husband, and during the continuance of the coverture she was capable of suing or defending an action only with his concurrence, and in his name as well as her own. It has been "If any person commits an assault and battery upon his wife, for any cause whatsoever, he is guilty of a misdemeanor, and punishable accordingly." Shan. Code 1896, § 6470. Chapter 26 of the Public Acts of the year 1913: "A bill for an act to be entitled 'An act to remove disabilities of coverture from married women, and to repeal all acts and parts of acts in conflict with the provisions of this act.' "Section 1. Be it enacted by the General Assembly of the state of Tennessee, that married from all disability on account of coverture, and women be, and are, hereby fully emancipated the common law as to the disabilities of married women and its effects on the rights of property of the wife, is totally abrogated, and marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition, or disposition of property of any sort, or as to her capacity to make contracts and do all acts in It has been held in this state: reference to property which she could lawfully complished by a statute when such purpose do if she were not married; but every woman is clearly expressed therein. now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of, all property, real and personal, in possession, and to make any contract in reference to it, and to bind herself personally, and to sue and be sued with all the rights and incidents thereof, as if she were not married. "Sec. 2. Be it further enacted, that all acts and parts of acts in conflict with the provisions of this act be, and the same are, hereby repealed. "Sec. 3. Be it further enacted, that this act take effect from and after January 1, 1914, the public welfare requiring it. "Passed February 20th, 1913." The constitutionality of the act of 1913 was assailed in Parlow v. Turner, 178 S. W. 766, and on that point this court, speaking through its Chief Justice, said: "It is said the act is unconstitutional because it violates so much of article 2, § 17, of the Constitution as provides that no bill shall become a law which embraces more than one subject, that subject to be expressed in the title. There is but a single subject, and that appears fully in the title, viz., the relief of married women from the disabilities of coverture. That subject fully covers every element that is written into the body of the act. The first clause, standing alone, 'that married women be, and are, hereby fully emancipated from all disability on account of coverture,' would have made thoroughly effective the purpose expressed in the title. All that followed merely amplified the thought, but each term of particularization lay implicit within the clause quoted." It is clear that section 6470, Shan. Code 1896, quoted supra, does not accomplish any "That a statute will not be construed to alter the common law, further than the act expressly declares or than is necessarily implied from the fact that it covers the whole subject-matter. State v. Cooper, 120 Tenn. (12 Cates) 549, 113 S. W. 1048, 15 Ann. Cas. 1116. We must assume that the Legislature had in mind in the passage of the act the fundamental doctrine of the unity of husband and wife under the common law, and the correla, tive duties of husband and wife to each other, and to the well-being of the social order growing out of the marriage relation, and that, if it had been the purpose of the Legislature to alter these further than as indicated in the act, that purpose would have been clearly expressed, or would have appeared by necessary implication. We are not warranted in ascribing to the Legislature by anything appearing in this act a purpose to empower a wife to bring an action against her husband for injuries to her person occurring during the coverture, thereby making public scandal of family discord, to the hurt of the reputation of husband and wife, their families and connections, unless such purpose clearly appears by the express terms of the act. It results that, in our opinion, there is no error in the judgment of the Court of Civil Appeals, and the same is therefore affirmed. BENNETT et al. v. HUTCHENS et al. Where a deed of land is to a husband and wife, an estate therein is by the entireties, and not in common, so that, on the death of one, the other takes the land absolutely. Wife, Cent. Dig. §§ 71-86, 88, 89; Dec. Dig. [Ed. Note.-For other cases, see Husband and 14.] 2. HUSBAND AND WIFE14 ESTATES BY THE ENTIRETIES-DEED-CONSTRUCTION. abrogation of the common-law rule in respect Where a deed of land is to a husband and wife, it is immaterial that it does not show upon its face that they are husband and wife, or that it was the intention of the grantor to create an estate by the entireties, but the common law requires that the estate be by the entireties. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 71-86, 88, 89; Dec. Dig. mm 14.] 3. HUSBAND AND WIFE 14-ESTATES BY THE ENTIRETIES-STATUTORY PROVISIONS. Shannon's Code, § 3677, providing that in all estates held in joint tenancy the share of the joint tenant dying shall descend to his heirs, instead of the other joint tenant, does not abolish estates by the entireties, but is limited to estates held in technical joint tenancy. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 71-86, 88, 89; Dec. Dig. 14.] Examination of the cases cited to sustain the existence of the common-law rule first laid down herein will disclose a practically unanimous concurrence of judicial opinion to 4. HUSBAND AND WIFE 113-ESTATES BY ENTIRETIES-STATUTE-CONSTRUCTION. the effect that an abrogation of the common- Laws 1913, c. 26, providing that married law rule will only be held to have been ac- women shall be released from all disability on |