Nevin, &C., v. Roach, &C.
| Citation | 86 Ky. 492 |
| Court | Kentucky Court of Appeals |
| Decision Date | 03 November 1887 |
| Parties | Nevin, &c., v. Roach, &c. Watson, &c., v. Nevin, &c. |
These two cases were heard together in the court below, and as nearly all the questions raised in the one case apply to the other, they have been argued and will be considered as one case in this court.
The question made as to benefits to be derived from the local improvement in order to impose the burden, has been raised, if not directly decided, in many of the reported cases, and while it has often been shown, and particularly in this case, that no pecuniary gain by an increased value of the property is apparent by reason of such improvements, it is manifest that such improvements conduce to the rapid and prosperous growth of cities, and result in increasing the value of real estate as such improvements are extended. All such assessments are made upon the idea that the property subject to such assessments is benefited by reason of the charge upon it; but to require the city or the contractor in every case to show the immediate advantages resulting to the owner from the construction and improvement of streets in the way of pecuniary benefit, would be to prohibit in effect such improvements by means of local burdens. As said by the special chancellor below, the land may be benefited in many ways not easily determined upon the basis of money value. Such improvements make the land more desirable to purchasers, and creates conveniences that the owner would not otherwise have; and while corner lots and the land bordering on the street are necessarily increased in value, it must also affect the value of contiguous property within the square, although, at the time the improvement is made, the increased value may be difficult to ascertain. Corner lots are, therefore, taxed higher by the provisions of the city charter than the lots less advantageously located, the object being to make the burden as equal and uniform as practicable.
This method of assessment has been so long followed by the city government and approved by this court that it no longer remains an open question, and the same may be said of the question of notice to the taxpayer that he may appear and show why he should not pay his proportion of the cost of the improvement.
The inquiry was made in the court below as to the character of the burdens imposed, and where the exactions are illegal the tax-payer can be heard and the assessments of the municipal government supervised when it has transcended its power, or has imposed burdens that are so oppressive as to amount to a confiscation of his property. He then has his day in court. The city government must judge of the necessity for the improvement, and is not required to consult the wishes of those who are to be taxed to pay for its construction. Notice was given of the time and place for receiving the work, or for a hearing by the parties interested, and if none had been given, the appellants are now objecting to the validity of the assessment, etc. "In all such cases," says Mr. Justice Field, in Hagar v. Reclamation District, "all the opportunity is given to the tax-payer to be heard respecting the assessment, which can be deemed essential to render the proceedings due process of law." 111 U. S., 707; see also Preston v. Roberts, 12 Bush, 570.
In the case of Thomas Watson and others, one of the cases being considered, the improvement consisted in the construction of a carriage-way on Chestnut street to the east line of Twenty-sixth street, to be thirty-six feet in width, and improved by grading, curbing and paving with macadam pavement, with corner-stones at the intersections of streets and alleys, block stone gutters and footway crossings, etc., in accordance with the provisions of an ordinance approved twenty-first of August, 1880, entitled general ordinance concerning the improvement of streets. The contract was entered into between the city and Nevin, the contractor, and the work executed in compliance with the contract and the ordinance directing the improvement.
Various objections were made in the court below to the manner in which the ordinance was passed, all of which were properly disposed of by the chancellor.
It was objected that several ordinances for improvements were passed at one time as one ordinance, and, therefore, the charter requiring that an ordinance shall embrace but one subject, and that to be expressed in the title, was, in effect, disregarded. This contention by the appellant is based on the fact that the clerk in making the entries, for the sake of brevity and to save time and space in making the orders, recites that ordinances for the improvement of streets A, B, C and D were passed, etc. There is nothing in such an entry to show that the organic law of the city has been violated; but, on the contrary, the presumption is, or should be, that the ordinances were voted upon separately, as the charter requires.
The parol proof shows that such was the case, and if incompetent to supply the record, it strengthens the presumption that would be indulged if such testimony was not in the record.
The charter also provides that no ordinance shall be passed until it shall have been read in each board at two several meetings, etc., "unless this provision be suspended by a vote of all the members elect in which the proposed ordinance is pending; nor shall any ordinance embrace but one subject, and that expressed in the title."
The record shows that a member of the board introduced the following ordinances, which were read once and ordered to be read a second time, etc. The second reading being dispensed with, etc., the same were passed by the following vote. It is argued that the second reading should be dispensed with at a subsequent...
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