Beck v. Obst
| Citation | 75 Ky. 268 |
| Parties | Beck v. Obst, & c. |
| Decision Date | 15 September 1876 |
| Court | Court of Appeals of Kentucky |
APPEAL FROM LOUISVILLE CHANCERY COURT.
JOYES DUPUY & MIDDLETON, For Appellant,
Charter of City of Louisville, sec. 12.
4 Bush 464, Hydes & Goose, & c. v. Joyes.
7 Bush 667, Bradley v. McAtee, & c.
H. M LANE, For Appellees,
CITED
10 Bush, 181, Caldwell v. Rupert.
7 Bush, 667, Bradley v. McAtee, & c.
8 Bush, 510, Broadway Baptist Church, & c. v. McAtee, & c.
The improvement of one hundred and twenty feet on the east end of the alley, in 1866, was done according to the averments in the appellant's answer, under a valid proceeding by the General Council, and in justice and equity the appellant and others who were required under that proceeding to pay for the work ought not to be compelled now to contribute, equally with those who then paid nothing, to the improvement of the residue of the alley; and unless the law is imperative the chancellor should not have so adjudged, for to do so is to subject the appellant to a double burden.
The requirement of the present charter is that the cost of such improvements shall be apportioned against the lots in each fourth of a square according to the number of square feet in each, except corner lots, which are required to pay twenty-five per cent more than others.
But this provision was doubtless intended to apply only to improvements extending along the whole square, and not to a case like this, where a part had already been improved under the orders of the city government and paid for by the owners of property adjacent thereto.
Indeed it may well be doubted whether the legislature possessed the power to compel lot-owners who had already been assessed to improve in front of their property to contribute, in common with others who have paid nothing, to pay for the improvement of the residue of the alley. Such a rule of assessment would violate a fundamental principle of the law respecting public burdens, which requires approximate equality.
The charter provides that the general council, or the courts in which proceedings may be pending to enforce claims for improvements on public ways, shall make all corrections rules, and orders to do justice to all parties. That provision is broad enough to cover a case like this, and we think the court should have overruled the demurrer to the answer, and if the facts therein stated were...
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