Cheaney v. Hooser

• Citation: 48 Ky. 330
• Parties: Cheaney v. Hooser.
• Decision Date: 01 February 1848
• Court: Court of Appeals of Kentucky

48 Ky. 330

Cheaney v. Hooser.

Court of Appeals of Kentucky.

February 1, 1848

Legislative power. Towns. Constitutional law.

APPEAL FROM THE CHRISTIAN CIRCUIT.

Woolley & Kinkead and Wooldridge for appellant.

Gray for appellee.

BRECK Judge did not sit in this case.

OPINION

MARSHALL CHIEF JUSTICE

Case stated and judgment appealed from.

THIS action of trespass was brought by Cheaney to recover damages for the taking and conversion of his horse by Hooser. The defendant justified as Marshal of the town of Hopkinsville, and avers that he took the horse as a levy or distress, out of which to coerce from the plaintiff a tax of ten dollars, the amount of tax due from him under an assessment of tax for the year 1847, upon the citizens of Hopkinsville, by the Board of Trustees of that town, of which the plaintiff is alleged to have been a citizen. The replication denies the alleged citizenship of the plaintiff, and says he was not subject to be taxed, on which issue was joined. The case was submitted to the Court upon an agreed statement of facts; and the Judge refusing to adjudicate, the parties agreed upon a member of the bar, by whom it should be decided. His decision against the plaintiff was entered as the judgment of the Court, from which the plaintiff has appealed to this Court.

It appears by the agreed facts, that the plaintiff resides outside of the limits of the town of Hopkinsville, as they existed before the passage of the act of February, 1846, ( Session Acts, 132,) but within the limits as extended and established by that act. And the question intended to be made, and which was decided in the Circuit Court, is, whether the plaintiff's property outside of the former limits but within those prescribed by the act of 1846, is subject to the taxing power of the trustees of the town of Hopkinsville, as exercised with regard to property within the former limits. Before the extension of the boundary by the act referred to, the trustees of Hopkinsville had been empowered to levy and collect an ad valorem tax not exceeding twenty-five cents upon the hundred dollars, upon the real and personal estate in said town. The act of February, 1846, makes no express grant of power, but simply amends the act incorporating the town of Hopkinsville, so as to extend the limits of said town to the boundary described. It may be assumed that it was the intention of this enactment to place the extended town under the power and jurisdiction of the trustees for the purposes of revenue and police, as fully as the pre-existing town was before the extension. And whether the Legislalure had power, under the Constitution, thus to subject it, is the question which was intended to be presented for decision in the case before us.

The question presented for decision in this case.

The act contains no recital of facts, nor any intimation that the extension is called for by any necessity or by public expediency, or by the petition or consent of the persons whose lands and other property are to be included in the town, but extends the limits to a designated boundary, of which four of the corners appear on the face of the act, to be in the fields of different persons therein named. It appears by the agreed facts, that the trustees and a large majority of the citizens of the old town, petitioned for the extension, and that some of those residing within the proposed addition united in the petition, while others, among whom was the plaintiff, refused to unite, and objected to the proposed extensions, but that a large portion of the citizens residing within the new extension had afterwards voted at the polls for trustees of the town. The agreed facts farther show, that by the extension, the area of the town has been increased from about 250, to about 350 acres, and its taxable property from about $300,000 to about $441,000--that a part of the land included in the extension, and adjacent to plaintiff's residence, has for years been divided into small lots, and is thickly settled with finely improved residences, occupied by gentlemen who carry on business within the old limits, and enjoy, to the fullest extent, the advantages of the corporation-- that this part is within three hundred yards of the center of the town and its business--that the plaintiff's residence is within thirty feet of the former boundary, from which it is separated by a street that has been kept in repair by the trustees, and that since the passage of the act of 1846, the trustees have exercised the same powers of taxation, improvement of streets, & c., within the added territory, as within the former limits of the town.

This statement of facts, embracing all which are presented in the agreed case, authorizes the assumption, that on one side of the former town of Hopkinsville, a comparatively dense population had located itself with a view, doubtless, of enjoying the advantages arising from a situation so near the town, and probably with the expectation and intention of being exempt from the burthens which might devolve upon the actual citizens. There can be no doubt that the Legislature might, with the consent of the proprietors of the land covered by this population, have made it an integral part of the town, and have thus subjected it to the ordinary powers of the local authorities. Could the same have been done upon the petition of a majority of these proprietors, so as to bind the minority, against their consent? Could it have been done upon the petition of all but one, so as to bind that one against his consent? Could it have been done upon the mere will and judgment of the Legislature, without the petition of any of the proprietors, and without regard to their wishes on the subject?

They who own land adjacent to an incorporated town, may, on their petition, have their land inclosed within the limits of the corporation.

If the Legislature has no power to extend the limits of a town, except such as is derived from the will of the proprietors of the lands proposed to be included, we know of no principle which would authorize any majority, however great, to bind the minority, however small, and the legislative act would be ineffectual to incorporate any portion of the adjacent land with the town, against or without the assent of the individual owner of that portion. If this be the true condition of the legislative authority on the subject, the power is merely that of effectuating the will of each individual proprietor with regard to his own land. And it must be so, or else if the Legislature has the power to pass such an act at all, it has it as the legislative department of the government, authorized to act upon its own will and judgment. And however these may be properly influenced by the wishes or representations of the parties who may be affected by its acts, those acts having the authority of the Constitution, and of the entire Commonwealth to give them force, cannot be limited or affected by the will or the interests of the particular persons upon whom they may operate. The act of 1846, which has been referred to, neither submits the question of extension to the individuals concerned, nor professes to be based upon their will, nor makes any reference to their interest. It is in its terms a peremptory and absolute mandate, claiming no support from any extraneous will or act, but resting exclusively upon he will and judgment of the Legislature. And as the agreed facts do not authorize the assumption that all, or even a majority of the proprietors of the land thus brought within the town, requested or assented to the act, and it is certain that the plaintiff did not, the authority of the act, so far at least as this case is concerned, depends upon the broad question of legislative power under the Constitution.

By the Constitution of Kentucky, the legislative power of this Commonwealth, that is, all the legislative power, subordinate to the Constitution, is vested in the General Assembly, subject, of course, to such restrictions as are expressed or necessarily implied in other parts of the Constitution, and to such as are imposed by the Constitution of the United States. If the extension of the limits of a town be a subject embraced within the general legislative power of the Commonwealth, it is within the power given to the General Assembly, and is an allowable subject of legislative action, unless it is interdicted by some provision of the State or Federal Constitution, or unless its exercise in the particular case should violate some right secured by one or both of those instruments.

In common language, any indefinite number of inhabited houses in close vicinity to each other, constitutes a town. But something more is necessary to fill up the legal idea of a town, which may indeed exist without, or at any rate, before either houses or people. Besides people and houses, and the territory on which they are situated, the authority of law under which the people may be governed, or govern themselves in an associated form, and the affairs of the town be regulated for the common convenience and prosperity, is essential to the proper character of a town. This essential feature in the proper character of a town, can only be imparted to it by the direct action of the Legislature referring to the particular subject, or by the act of some other body or tribunal authorized by it. It is true, that in other governments the King has exercised the power of granting or altering municipal charters; but it is undoubtedly a legislative function by whatever organ it may be exercised in particular countries; and we presume its exercise has never been attempted under a grant of executive power in any government by whose fundamental law the three great powers of government are distinguished...