City of Ludlow v. Trustees Cincinnati S. R. Co.

• Decision Date: 04 March 1880
• Citation: 1 Ky.L.Rptr. 105,78 Ky. 357
• Parties: City of Ludlow v. The Trustees of the Cincinnati Southern Railway, & c.
• Court: Kentucky Court of Appeals

78 Ky. 357

1 Ky.L.Rptr. 105

City of Ludlow v. The Trustees of the Cincinnati Southern Railway, & c.

Court of Appeals of Kentucky.

March 4, 1880

1. The city of Ludlow having levied an assessment upon all the real estate lying upon a certain street within its limits, for the purpose of improving the street-- held, that a lot upon the street owned by the appellee, the Cincinnati Southern Railway Company, is subject to the assessment.

2. The fact that the lot is the property of a railway company, and is used for railroad purposes, furnishes no more reason why it should be exempted from an assessment than if it belonged to a natural person.

APPEAL FROM KENTON CHANCERY COURT.

J. F. &amp C. H. FISK FOR APPELLANT.

1. The question as to whether the improvement of Ash street is proper or not is a legislative question, or if judicial, it is to be decided by the council of the city of Ludlow. (Sec 1, chap. 1419, Acts 1871, vol. 1, p. 333.)

2. A railway company owning a lot upon a street ordered by the city authority to be improved at the expense of lot-owners is as much bound to pay its proportion as private individuals. (Johnson v. City of Louisville, 11 Bush, 529; 11 Johnson, 77; 4 Hill, 76; Redfield on Law Railways, vol. 2, 389; 10 Ohio; 46 N.Y. 506; 8 Bush, 508; 24 Missouri, 20; 13 Penn., 107; 10 Bush, 549.)

C. B SIMRALL FOR APPELLEE, CINCINNATI SOUTHERN RAILWAY COMPANY.

1. Usually it is no objection to a tax that the person required to pay it derives no benefit from that particular burden; but there are circumstances when courts will restrain the collection of the tax. (Courtney v. Louisville, 12 Bush, 419; Preston v. Roberts, Ibid, 570; Bradley v. McAtee, 7 Bush, 667; 11 Johnson, 77; 8 Bush, 508; Louisville v. Nevin, 10 Bush, 550; 36 Conn. 255; 33 Penn., 41.)

2. The law treats a railroad and all its appurtenances as one entire thing, not legally subject to coercive severance or dislocation. It is not a subject of local taxation by the counties through which it runs. (Applegate v. Ernst, 3 Bush, 648; Lou. and Nash. R. R. Co. v. Warren County Court, 5 Bush, 247; Johnson v. Louisville, 11 Bush, 531; 5 Rawle, 291; 36 Conn. 255; Redfield on Railways, vol. 2, 388; 10 Ohio 160; 12 Iowa 112; 38 Conn. 422; 32 Cal. 499; 41 Ill, 306.)

3. The alleged improvement was unnecessary, and was made to accommodate travel which entered Ludlow from the east, which of necessity passed over a portion of Ash street. No such power over the property of the subject can constitutionally be exercised by any department of our state government. ( Howell v. Bristol, 8 Bush, 493.)

SIMMONS & SCHMIDT FOR APPELLEE, J. W. RICH.

A lien cannot exist upon a part of a railroad. It must be upon the entire road. It cannot be sold in parcels; it must be sold as an entirety, and the judgment should be affirmed. (Acts General Assembly, 1871, 333; Acts 1873, 2d vol., 576, sec. 7.)

OPINION

HINES JUDGE:

This suit was brought by the contractor, J. W. Rich, against appellant and the trustees of the Cincinnati Southern Railway, to recover an assessment made by the city upon a lot belonging to the trustees, and abutting on the improved street. The court below held that the lot was necessary for the operation and maintenance of the railway, and refused to subject it to the payment of the claim, and rendered judgment against the city. The correctness of that ruling is questioned on this appeal.

It is suggested by counsel for the trustees that the lot is not liable to assessment: 1st, because it was not benefited by the improvement; and 2d, because as it has been withdrawn from the ordinary uses to which town lots are appropriated, and has become a part of the railway, essential to its operation, it is not within the policy of the law subjecting town lots to such local burdens.

The evidence shows that the lot supports a portion of the masonry of the road-bed, and is essential to the proper drainage of the track.

The assessment was made upon the lots in proportion to the number of front feet, and in accordance with the provisions of the charter.

The objection that the lot was not benefited by the improvement of the street is sufficiently answered by the case of McFerran v. Alloway (14 Bush, 580). In that case the legislature had authorized the levy of a tax upon all the property within a certain precinct to pay for the construction of a railroad running through it. Within this district is an island in the Ohio river so situated that access to the Kentucky shore along which the road ran was so dangerous and difficult as to deprive the owner of the island of any benefit from the construction of the road. In answer to this objection to the payment of the tax on the island the court said:

" The power on the part of the legislature to establish this district, or to authorize the particular precinct to vote the tax, is conceded, and the fact that the local improvement has been or is being constructed in the taxing district, is also admitted, and in such a case it seems to us the legislative discretion on the subject must control. This court has so often determined that such power existed in the legislature of this State that it is no longer an open question; and the benefits to be derived by those living in the locality of the improvement having been determined by the legislature in passing the act under which the tax was imposed, this court has no revisory power over it. In the judgment of the legislature this taxing district is benefited by the improvement; and the fact that an actual benefit is not derived by one living in a remote part of the district, or where it is difficult to approach the road or highway, is no argument against the imposition of the burden."

The fact that the local burden in that case was assessed in proportion to the value of the property, instead, as in this case, upon the area or frontage, can make no difference. The principle is the same in both instances.

While assessments of this character, as distinguished from general taxation, rest upon the basis of benefits or presumable benefits to the property assessed, it is not essential to their validity that actual enhancement in value, or other benefit to the owner, shall be shown. The passage of the ordinance by the city council, under the power granted in the charter, is conclusive of the propriety of the improvement, and of the question of benefit to the owners of abutting property. (Northern Indiana R. R. Co. v. Connelly, 10 Ohio State, 164.) Absolute equality in the distribution of such burdens cannot be attained. An approximation to equality is all that is possible, but in reaching this point the present or prospective use of the property cannot enter into the calculation.

As indicated, the second position contended for by counsel for the trustees is, that as the lot upon which the assessment was made is necessary for the operation of the railway, it is contrary to public policy to subject it to this burden.

In support of this, counsel cite and rely upon the following cases decided by this court: Phillips v. Winslow, 18 B. M.; Applegate v. Ernst, 3 Bush; Warren County v. Louisville and Nashville R. R., 5 Bush; Elizabethtown and Paducah R. R. v. Trustees of Elizabethtown, 12 Bush, and Graham v. Mt. Sterling Coal Road Company, 14 Bush.

In Phillips v. Winslow it was held that, in the absence of express legislative authority, the interest of the public in the maintenance and operation of a railway was such that the cars and fuel of this road could not be sold under execution.

The most that is decided in the case of Applegate v. Ernst is that when the...