City of Mt. Sterling v. Montgomery County

• Citation: 152 Ky. 637,153 S.W. 952
• Parties: CITY OF MT. STERLING v. MONTGOMERY COUNTY et al.
• Decision Date: 06 March 1913
• Court: Court of Appeals of Kentucky

153 S.W. 952

152 Ky. 637

CITY OF MT. STERLING v. MONTGOMERY COUNTY et al.

Court of Appeals of Kentucky.

March 6, 1913

Appeal from Circuit Court, Montgomery County.

Action by the City of Mt. Sterling against Montgomery County and others. From a judgment dismissing a petition, the city appeals. Affirmed.

W. B White and W. C. Hamilton, both of Mt. Sterling, for appellant.

Earl W Senff, of Mt. Sterling, for appellees.

CARROLL J.

In April, 1911, the board of council of the city of Mt. Sterling a city of the fourth class, adopted in the manner required by law an ordinance providing for the original construction of certain streets within the city, among them being three streets on which abutted the property of the county of Montgomery occupied by its courthouse and other public buildings. In pursuance of this ordinance a contract was let to do the work described in the ordinance, and upon its completion, and after it had been accepted by the board of council, a bill for $3,266, the cost of the improvement made on the streets abutting the property of the county, was presented to the fiscal court of the county and payment thereof demanded. Upon the refusal of the fiscal court to allow the claim or any part of it, or to make any provision for the payment of any part of it, this suit was brought by the city against the county of Montgomery and the members of the fiscal court; the prayer of the petition being for a judgment against the county for the amount of the claim, with a lien upon the property, and for a mandamus against the members of the fiscal court requiring them as a court to provide for the payment of the indebtedness. The county of Montgomery and the members of the fiscal court entered a general demurrer to the petition, which was sustained, and declining to plead further, the petition was dismissed, and the city prosecutes this appeal.

Neither in the lower court nor on this appeal is any question made as to the regularity of any of the proceedings of the council, nor is the amount of the claim questioned. The defense of the county and the fiscal court is rested distinctly on the ground that the city authorities were without power to charge the county with the cost of the improvement.

Section 3572 of the Kentucky Statutes, which is a part of the charter of fourth-class cities, provides in part: "The original construction of any street, road, alley, market place, lane, public square or grounds, wharves, levees or avenue may be improved by grading, macadamizing, paving with brick, granite or other material, curb and gutter, sidewalks and sewers, as may be prescribed in the specifications and ordinances at the exclusive cost of the owners of the lots and parts of lots or land fronting or abutting or bordering upon the grounds so improved, to be equally apportioned by the board of council according to the number of front feet owned by them respectively, upon the petition of the majority of the property owners of the lots or parts of lots or grounds abutting or bordering upon the ground to be improved. ***" Other related sections of the statute provide that the cost of the improvement shall be a lien upon the property, and describe the manner of its enforcement; but we do not find in the statute any authority for taking a personal judgment against the property owner for the cost of the improvement, the sole remedy being against the property itself upon which the improvement is a lien. This was expressly ruled in City of Catlettsburg v. Self, 115 Ky. 669, 74 S.W. 1064, 25 Ky. Law Rep. 161, where the court said: "Where the city directs, as it may, that such improvement be made at the exclusive cost of the abutting property, and the statute requires it to be borne in such event exclusively by the abutting property, the liability for the cost of the improvement is in no sense a personal one upon the city. The contractor must look alone to the property designated by the ordinance directing the improvement for pay for his work and materials. Gosnell v. City of Louisville, 104 Ky. 201 [46 S.W. 722, 20 Ky. Law Rep. 519]; Becker v. City of Henderson, 100 Ky. 450 [38 S.W. 857, 18 Ky. Law Rep. 881]." To the same effect is Adams v. City of Ashland, 80 S.W. 1105, 26 Ky. Law Rep. 184.

We may also observe that section 170 of the Constitution, and section 4026 of the Kentucky Statutes, enacted in pursuance thereof, providing that "public property used for public purposes" shall be exempt from taxation, does not apply to special assessments like the one here in question. This constitutional and statutory exemption from taxation only refers to general ad valorem or property taxes that may be levied by the state, city, county, or taxing district under authority of law. We have so ruled in Hager, Auditor, v. Gast, 119 Ky. 502, 84 S.W. 556, 27 Ky. Law Rep. 129; Zable v. Louisville Baptist Orphans' Home, 92 Ky.89, 17 S.W. 212, 13 Ky. Law Rep. 385, 13 L.R.A. 668; Gosnell v. City of Louisville, 104 Ky. 201, 46 S.W. 722, 20 Ky. Law Rep. 519.

We may further observe that it is admitted by the city that the fiscal court of Montgomery county did not authorize the making of the improvement, or in any manner obligate itself to pay the cost thereof.

With these preliminary matters out of the way, two questions are presented by the record for our decision: (1) Can the property of the county used for public purposes be subjected to the payment of the cost of the improvement? (2) If not, can the fiscal court be compelled by mandamus to provide a means by which it may be paid? The first of these questions may be readily answered in the negative. There is no statute authorizing or permitting this to be done, and we know of no authority that would justify it. On the contrary, it is well established in this state, as indeed it is everywhere, that public property used for public purposes, in the absence of express constitutional or legislative authority, cannot be sold to satisfy a debt of any kind. Roe & Lyon v. Scanlan, 98 Ky. 24, 32 S.W. 216, 17 Ky. Law Rep. 595; Noonan v. Hastings, 101 Ky. 312, 41 S.W. 32, 19 Ky. Law Rep. 485, 72 Am.St.Rep. 419; Allen County v. United States Fidelity & Guaranty Co., 122 Ky. 825, 93 S.W. 44, 29 Ky. Law Rep. 356.

This brings us to a consideration of the question whether or not the fiscal court of Montgomery county can be compelled by mandamus to provide for the payment of the cost of this improvement. It is said by Judge Freeman, in the note to Board of Commissioners v. Ottawa, 33 Am.St.Rep. 396, that: "Upon the question as to the power of a municipality to levy and collect an assessment as distinguished from a tax against public property, or property exempted by law from taxation generally, in cases when such assessment is made for the purpose of paying for a work of local improvement, as the grading of a street, the laying of a sewer, and the like, the authorities are in great conflict and perhaps about equally divided."

In Adams County v. City of Quincy, 130 Ill. 566, 22 N.E. 624, 6 L.R.A. 155, the Supreme Court of Illinois ruled that where the city improved the streets abutting upon property owned by the county, and on which its courthouse and public buildings were situated, it might compel the county authorities to appropriate funds to pay for the cost of the improvement. This decision was put upon the ground that, in the absence of a statute exempting public property from the payment of a special tax levied for improvement, the county that owned the public property must pay for the improvement, although there was no statute expressly authorizing the burden to be put upon the county by the city.

In Edwards & Walsh Construction Co. v. Jasper County, 117 Iowa 365, 90 N.W. 1006, 94 Am.St.Rep. 301, the Iowa court, in holding that, as there was no statute exempting from special assessment the property of a county occupied by its courthouse and public buildings, a city in which it was situated had the right to tax it as other property and compel the county authorities to pay the cost of the improvement, said: "There is no reason why the county, the city, or the school district should not pay for the benefits received by it the same as any other property owner. Of course, their property may not be sold; but there is no reason why the amount of the tax may not be paid out of the treasuries of these institutions, and, if the governing bodies fail to make payment, mandamus will compel them to do so. The county should, in our judgment, provide sidewalks in front of its property, and, when the city orders, pay its proportion of the cost of paving the streets."

In Board of Commissions of Franklin County v. City of Ottawa, 49 Kan....