Broadway Baptist Church v. McAtee

• Decision Date: 10 January 1871
• Citation: 71 Ky. 508
• Parties: Broadway Baptist Church et al. v. McAtee and Cassily, & c.
• Court: Kentucky Court of Appeals

71 Ky. 508

Broadway Baptist Church et al. v. McAtee and Cassily, & c.

Court of Appeals of Kentucky.

January 10, 1871

APPEAL FROM THE LOUISVILLE CHANCERY COURT.

ANDY BARNETT, I. W. EDWARDS, J. HARDING, R. J. ELLIOTT, For Appellants,

CITED

Am. Law Reg., July, 1869, page 415, Hamett v. Philadelphia.

New Charter of the City of Louisville, secs. 12, 68, 69, 70, 81 14.

98 Massachusetts, 583, Tufts v. Charleston.

35 California, 441, Himmelman v. Danos.

28 Indiana, 347, McEntire v. Brown.

36 California, 239, Measer v. Risdom.

7 American Law Register, 143 (N. S.), Dean v. Charlton.

8 Bush 300, Garrard County Court v. Ky. River Navigation Co.

9 Dana, 573 5 Dana, 28

4 New York, 419. 10 Ohio 165.

5 Ohio 246. 21 Louisiana, 142.

34 California, 310, Smith v. Cafron.

44 Barbour (N. Y.) 46, In re Terfler.

21 Wisconsin, 247, Knox v. Peterson.

17 Wisconsin, 443, Myrick v. LaCrosse.

21 Wisconsin, 184, Johnson v. Oshkosh.

21 Iowa 57, Des Moines v. Cassiday.

47 Missouri, --, Leslie v. St. Louis.

MUIR & BIJUR, For Appellees,

T. L. BURNETT, For City of Louisville,

CITED

Charter of City of Louisville of 1870, secs. 7, 12, 67, 108, 126.

Elliott's Laws and Ordinances of Louisville, 350, 406, 407.

Newman's Pleading and Practice, 453. 4 Barbour, 620.

5 J. J. Marshall, 125. 7 J. J. Marshall, 459.

7 Bush, 41. 4 Bush, 470.

1 Marshall, 115. 35 Barbour, 604.

7 Bush, 667-69, Bradley v. McAtee, & c.

5 Bush, 520, Henderson v. Louisville.

29 California, 83, Emery v. Bradford.

OPINION

LINDSAY JUDGE:

This court adheres to the opinion delivered in the case of Bradley v. McAtee, & c. (7 Bush, 667); it is therefore unnecessary to discuss the constitutionality of the tax assessed against these appellants to pay portions of the cost incurred in the reconstruction of Broadway street with Nicolson pavement, in so far as it is claimed that the imposition of such tax impairs the obligations of contracts.

The 12th section of the charter of 1870 places the public ways of the city of Louisville under the exclusive control of the general council, with power to improve them by original construction and reconstruction. It provides that such improvements " shall be done as may be prescribed by ordinance, at the exclusive cost of the owners of lots in each fourth of a square, to be equally apportioned by the general council according to the number of square feet owned by them respectively, except that corner lots (say thirty feet front and extending back as may be prescribed by ordinance) shall pay twenty-five per cent. more than others for said improvements. A lien shall exist for the cost of improvements of public ways, for the apportionments and interest thereon, against the respective lots; and payments may be enforced as other city assessments for taxes upon the property bound therefor, or by proceedings in court; and no error in the proceedings of the general council shall exempt from payment after the work has been done as required by ordinance or contract; but the general council, or the courts in which suits may be pending, shall make all corrections, rules, and orders to do justice to all parties concerned; and in no event shall the city be liable for such improvements without having the right to enforce it against the property receiving the benefit thereof," etc.

It is certainly well settled in this state that the cost of the original construction of the streets of a city may be imposed upon the owners of real estate alone, without violating the constitutional limitations upon the legislative power of taxation. We can perceive no sufficient reason why the cost of the reconstruction of such streets may not also be assessed against the owners of the same character of property. In proportion as the trade and population of a city increase the value of real estate advances. The owners of such estate receive and enjoy very nearly the sole permanent advantages accruing to the city from the construction, repairs, and reconstruction of the streets upon which their property may be situated. The general public certainly receives incidental benefits from such improvements; but the benefits to the owners of real property are direct, appreciable, and permanent. The original improvement enhances the value of lots adjacent to the street improved by making it accessible to the public, and attracting trade and population. This enhanced value can be preserved in no other way than by keeping the street in repair, and by its reconstruction when too much worn to be longer repaired. Hence, so far as the right to impose this local taxation depends upon the enjoyment by the persons taxed of peculiar local benefits arising therefrom, it seems to us that there is no substantial difference between the reconstruction and the original improvement of the street.

We are not aware that this question has been directly presented to this court for adjudication in any other case than this; but it has been incidentally involved in several cases heretofore decided, and in no instance has it been intimated that the principle authorizing the tax for the one purpose does not apply equally to the other.

In the case of City of Covington v. Boyle, & c. (6 Bush, 204) the assessments against the lot-owners were for the cost of repairing and reconstructing certain streets in that city, and such assessments were held valid, and adjudged to be enforceable. The reasoning of the Supreme Court of Pennsylvania in the recent case of Hamett v. City of Philadelphia (July number, 1869, Law Register) is to some extent antagonistic to this conclusion. But in that case the improvement was not made to bring or keep the street, as all other streets in the built-up portion of the city were kept, for the advantage and comfort of those who lived upon it, and for ordinary business and travel; but to make a great public drive, a pleasure-ground, " along which elegant equipages may disport of an afternoon." Under such circumstances to have compelled a small number of persons owning property in the vicinity of such public pleasure-ground to pay the entire cost of its construction would have been manifestly and palpably a spoliation under the forms of law, and that this fact exercised a controlling influence with the court can be readily gathered from the opinion.

It may be conceded, as was held by that court, that when a street has been improved and assimilated with the rest of the city, and made a part of it, that it is the duty of the municipality, for the general good, to keep it in repair, and when necessary to reconstruct it. But still the important question remains to be determined, how the expense incurred in the performance of this duty is to be paid? Shall a portion of the general revenues of the city be applied to the payment of such expense, or may the sovereign power impose the burden upon that character of property which will be directly and permanently benefited by the expenditure?

In the imposition of this or of all other taxation a broad field is of necessity left open to legislative discretion. Public policy may, and in some cases does, demand that certain kinds of property shall be exempted from all taxation.

The law-making power has always exercised the right, without question, of determining the proper subjects either of general or local taxation, and we conceive that it is not within the province of the courts to abridge this legislative prerogative, nor to refuse to lend their assistance in carrying out the legislative will on account of doubts as to the policy or justice of enactments through which it may be expressed. When the subjects of taxation...