Brooks v. Meyers

• Decision Date: 20 May 1955
• Citation: 279 S.W.2d 764
• Parties: Fred D. BROOKS et al., Appellants, v. William D. MEYERS et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 764

279 S.W.2d 764

Fred D. BROOKS et al., Appellants, v. William D. MEYERS et al., Appellees.

Court of Appeals of Kentucky.

May 20, 1955.

Harry S. McAlpin, Louisville, for appellants.

William E. Berry, Louisville, for appellees.

HOGG, Judge.

This is an appeal from a judgment of the Jefferson Circuit Court dismissing appellants' complaint on appellees' motion. The effect of the judgment is to declare valid Ordinance No. 28, Series 1953, of the City of Louisville providing for the improvement of 34th Street from Young Avenue to Virginia Avenue and making provision for certain assessments against abutting property owners. The basic contention of the appellants, and others similarly situated, is that the ordinance and assessments are void, because, they say, the City of Louisville had no authority to make the improvement pursuant to KRS 93.370, known as the 'Regular Plan,' but should have proceeded under the statute providing for 'Arterial Highways.' KRS 93.880 to and including KRS 93.950.

The appellants and others similarly situated, under the above-mentioned ordinance, have been assessed a special street improvement tax for the construction of the street.

On August 1, 1930, the City Planning and Zoning Commission of the City of Louisville (not the Board of Aldermen) adopted in general terms a 'Major Street Plan' for the City of Louisville, as shown by Ordinance No. 279, which plan was based on a survey and report by 'Bartholomew.' The Major Street Plan so adopted provided for an extensive plan of major streets throughout the City, designating the extent and width thereof.

Thirty-Fourth Street was designated on the Major Street Plan as a proposed arterial highway, which included the previously unimproved portion of the said street from Young Avenue to Virginia Avenue, here involved. That part of 34th Street recently has been constructed with a carriageway of 42 feet, and Ordinance No. 28, Series 1953, provides that the cost of 16/42 of the 42-foot width should be paid out of the proceeds of the Street and Traffic Bond Issue, and the cost of the remaining 26/42 should be apportioned and assessed against the owners of the property in the quarter squares abutting on 34th Street as provided in 'Public Ways-Regular Plan.' KRS 93.370. It was deemed, presumably, that the width of the 'average' old paved street (34th) in Louisville was 26 feet. Therefore, the property owners were assessed 26/42 of the cost and the City paid out of the proceeds of its bond issue 16/42 of the total cost, the latter fractional part representing the extra width of the street.

In 1950 the voters in the City of Louisville authorized the issuance of bonds in the sum of $5,000,000 to be expended for improvements to the traffic conditions existing in Louisville. These improvements were to be made in pursuance of the 'Barton Plan.' The estimated cost of construction and reconstruction of 135 miles of major streets was set forth in the 'Barton Plan' as $5,507,300. The actual construction of the section of 34th Street from Young Avenue to Virginia Avenue, as authorized by Ordinance No. 28, Series 1953, was $115,361.

The appellants sought relief in the alternative as follows: 1. That the assessments made under the authority of Ordinance No. 28 be declared invalid; that the City of Louisville refund to any of the appellants who have paid such assessments the amounts of said payments; 2. alternatively, in the event Ordinance No. 28 is not adjudged invalid, then they ask that the sums provided for major street improvements by funds from the $5,000,000 bond issue first be applied to the cost of the improvements, and that credit be applied before assessment of any cost to appellants for such improvements; and if the credit is sufficient to pay the entire cost of the improvements, then that they be relieved of all assessments against them and proper refund be made to those who have paid all or any part of such assessments; 3. finally, in the alternative, if Ordinance No. 28 is not invalid, and if the appellants are due no credit by application of funds from the bond issue aforesaid, or if the credit is not sufficient to pay the entire assessment, then that the assessments be reapportioned to include the benefited area half-way to the next arterial highway on each side of 34th Street. KRS 93.910.

In addition to the basic contention of the appellants that Ordinance No. 28, Series 1953, which provided for the improvement of 34th Street from Young Avenue to Virginia Avenue, and for assessments as hereinabove mentioned, is invalid, the appellants also contend that since 34th Street has been constructed pursuant to the 'Barton Plan' the entire cost of the street improvement in the sum of $115,361 should be paid out of the proceeds of the bond issue before any assessment is made against their property.

The improvement of this street under Ordinance No. 28, Series 1953, was done, with some variations, under the plan approved in the case of City of Louisville v. Helman, Ky., 1952, 253 S.W.2d 598, in which case we approved the widening of Hill Street in the City of Louisville from 26 to 36 feet, the cost of the additional 10 feet to be paid out of the proceeds of the $5,000,000 street improvement bond issue, hereinbefore referred to, which was approved at the 1950 general...