City of Lexington v. McQuillan's Heirs

• Decision Date: 09 December 1839
• Citation: 39 Ky. 513
• Parties: The City of Lexington v. McQuillan's Heirs.
• Court: Kentucky Court of Appeals

39 Ky. 513

The City of Lexington v. McQuillan's Heirs.

Court of Appeals of Kentucky.

December 9, 1839

FROM THE CIRCUIT COURT FOR FAYETTE COUNTY.

Mr. M C. Johnson and Mr. Menifee for plaintiff.

Mr Owsley and Mr. McCalla for defendants.

OPINION

MARSHALL JUDGE:

Statement of the case.

This is an agreed case, between the city of Lexington and the heirs of Thomas McQuillan, deceased, exhibiting in substance the following facts:--

Under the supposed authority of the eleventh section of the statute incorporating the city, the municipal council having in the year 1836, graded and McAdamized Main Cross street, from the intersection of High street to Maxwell street, and also reduced to a corresponding grade and paved the side walks--distributed the cost thereof among the owners of lots on each of the squares opposite to and adjoining the improvement thus made and McQuillan's heirs being the owners of the lot on the corner of Main and High streets fronting 177 feet on the former, and 66 feet on the latter and estimated, in that year, at one thousand dollars--the city council assessed against them, as their distributive portion of the cost of the work, five hundred and nine dollars ninety two cents; that being one half of the amount charged for the grading and paving opposite to their ground.

This sum greatly exceeded the proportionate cost of the entire work done opposite to the lots of ground respectively in the same square, in consequence of a deep cut and a stone wall made opposite to the lot of McQuillan's heirs.

The city collector, who was charged with the collection of the assessment, being about to coerce payment by a sale of the lot, in virtue of another ordinance prescribing such a procedure, the heirs resisted the sale, on the ground that they deemed the authority attempted to be conferred by the said eleventh section of the city charter, unconstitutional and void; and the foregoing facts and others not very material to the question of power having been submitted by mutual agreement to the Circuit Judge of Fayette, he decided that the city had no constitutional authority to exact the assessment as made, and thereupon enjoined the corporation from " proceeding to levy the sum in the agreed case mentioned, on the estate of McQuillan's heirs; or in any wise carrying into effect the order for paving and grading the street in the agreed case mentioned, or any part thereof, at the cost of said heirs."

That decision is now to be revised by this Court.

The eleventh section of the charter is as follows:--

" Sec. 11. Be it further enacted, That the mayor and councilmen shall have full power and authority, to cause and procure all the streets and alleys in said City, now established, or hereafter to be established, to be paved or turnpiked, at the cost and expense of the lot owners fronting such streets or alleys; and a petition in writing, of the owner or owners of a greater part of the ground fronting on any square, shall be sufficient to authorize a contract for the paving or turnpiking the street or alleys in such square: Provided, however, that the mayor and councilmen by their unanimous consent in council, may cause any street or alley, in any square in said city, to be paved or turnpiked at the cost and expense of the owners of lots, or parts of lots, fronting such street or alley, without any petition or consent; and when the paving or turnpiking shall be completed, they shall apportion the costs and expenses equally, on the lot holders, and a lien is hereby given on the lots, and parts of lots, for the same; which costs and expenses may be listed and collected, as other taxes, by the City collector, and who shall have authority to sell and convey the lots, and parts of lots, for the same, under the by-laws and regulations of the mayor and councilmen: Provided also, however, that the owner of any lot, or part of a lot, sold for paving or turnpiking, who has not consented in writing, for that purpose, shall have five years to redeem the same, on paying the purchase money, with ten per centum interest per annum with all the taxes and levies that may have subquently accrued; and those who have consented in writing, may redeem it, any time within one year, on the payment of the like interest: Provided, that infants shall have one year after arriving at full age, on like terms."

Construction of the 11 section of the act to incorporate the city of Lexington,--by which power is given to the mayor and councilmen to have the streets and alleys paved or turnpiked " at the cost and expense of the lot owners fronting such streets or alleys" --the cost and expense of improving that portion of a street upon which a lot fronts, can not be assessed exclusively upon that particular lot.--The expenses are to be defrayed by squares. When any street or alley is to be improved, the cost within a square, is to be assessed upon the owners of all the lots within that square, fronting on the street or alley to be improved--on each, in an equal ratio--not according to the value of the lots, but according to their extent upon the street or alley. And, if more than at that ratio, be assessed on the owner of anv lot--as where half the cost of grading and paving a street against a lot, being much more than the average for the square, was assessed upon the owner of it--a court of equity may enjoin the collection of the assessment.

It is manifest that this enactment prescribes a distribution of the entire cost of grading and paving a street and side walks, to the whole extent of the square, among the owners of the ground in that square, according to some principle of equity; and that it did not intend to authorize the exaction, from any such proprietor, of the cost of construction opposite to and co-extensively with the front of his lot, when the cost of that portion of the work had exceeded the average charge upon the entire square.

And it seems to us, also, that the rule of equality proscribed by the Legislature, is the territorial extent, and not the value of each lot of ground. This is the test of the authority given to a portion of the owners of ground in any one square, to require the renovation of the street and side walks opposite to such square, at the cost of all the owners of ground in it.

Had the ad valorem principle been adopted, the owner of a comparatively small piece of ground expensively improved might control the other owners of ground in the same square, and impose on the majority a heavy burden against their consent, and possibly against their interest. And, as the extent of each proprietor's front on the street, is the criterion of authority given to a part of them to control the whole, and impose a common burden, it is altogether reasonable to infer that the aggregate responsibility should be, and was intended to be, distributed according to the same principle.

Then as the amount assessed against McQuillan's heirs, is admitted to be much greater than their portion of the cost of the work opposite to the entire square, distributed among the several owners of ground therein, according to the rule prescribed by the statute, the Circuit Judge did not err in enjoining the coercive collection of the assessment, as thus illegally made, and attempted to be exacted.

But nevertheless, if those heirs be legally liable, under the eleventh section, for any portion of the cost of the work, the Circuit Judge erred in enjoining the city from exacting from them any more than their ordinary rate of taxation, as owners of property in Lexington.

The constitutional validity of the eleventh section of the city charter is therefore, necessarily involved in the revision by this Court, of the decision of the Circuit Judge.

The Legislative authority to establish municipal corporations, and to delegate to them any local power which the Legislature itself possessed, has not been controverted in the argument of this case, and is not doubted by this Court. But it is equally indisputable that no local power could have been delegated to the city of Lexington, or can be constitutionally exercised by it, unless the Legislature itself possessed the same power, and might have exercised it.

The authority of the Legislature to establish municipal corporations, and to delegate local powers to them, is not denied or doubted; but no greater power can be delegated, than might be exercised by the Legislature itself.

The legislative authority over this subject, though extensive, is not altogether arbitrary, but is subject to certain limitations and restrictions; among the most conspicuous of which, (are the constitutional provisions which guaranty equality, as far as it is attainable, and the security of property from irresponsible power and which require that taxation shall be general and uniform. There may be discrimination in the subjects of taxation; but there must be uniformity in the tax, upon the selected subjects; no individual's property can be subjected to a heavier tax than others are required to pay on property of the same description, and no one can be exempt, but in consideration of public services. The imposition of a public burden in which these principles are departed from, is not properly the levying of a tax, but the taking of private property for public use, contrary to an express provision of the constitution.

The counsel for the city insisted, that the authority, asserted in this case, is that of taxation, and that the power to levy taxes, though admitted to be liable to great abuse, is nevertheless unlimited.

But if the assessment against McQuillan's heirs, should be deemed a tax, we can not admit that the taxing power is, in this country altogether arbitrary. Such a doctrine would be no less alarming than...