City of Newport v. Silva
| Decision Date | 17 May 1911 |
| Citation | 143 Ky. 704,144 Ky. 450,137 S.W. 546 |
| Parties | CITY OF NEWPORT v. SILVA. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Campbell County.
Action by Albert Silva against the City of Newport. From the judgment, defendant appeals, and plaintiff files a cross-appeal. Judgment reversed on the original appeal and affirmed on cross-appeal. thereof when, construed in connection with other provisions of the act, making the improvement tax payable within thirty days and authorizing a contest of payment at that time, but providing that the general council may provide for any improvements on the ten-year payment plan, and that any person who desires to exercise such privilege of payment by installments shall enter into an agreement with the city that he will make no objections to any illegality or irregularity with regard to the taxes against his property, does not deny the property holders the equal protection of the law, since all others similarly situated are affected in the same way.
C. T Baker, for appellant.
L. J Crawford and L. J. Crawford, Jr., for appellee.
In the month of June, 1910, the general council of the city of Newport, a city of the second class, passed an ordinance entitled "An ordinance to amend and re-enact an ordinance prescribing the method of procedure governing and regulating the construction and reconstruction of all public ways and sidewalks in the city of Newport, Kentucky," approved August 27, 1906. This ordinance was approved by the mayor on June 22, 1910, and is not in full force and effect. It was enacted for the purpose of complying with and carrying into effect "An act to amend and re-enact sections 3094, 3096, 3097, 3098, 3099, 3100, 3102, of the Kentucky Statutes [Russell's St. § § 1205, 1207-1213], relating to the control and improvement of streets, public ways, landings wharves, grounds and sidewalks in cities of the second class," which became a law without the approval of the Governor. See chapter 107, Acts 1910, p. 306.
This suit was brought by appellee, Albert Silva, against the city of Newport, pursuant to section 3063, of the Kentucky Statutes (Russell's St. § 1047), for the purpose of testing the validity of the ordinance. The ordinance is attacked on the ground that the act above referred to, and pursuant to which it was passed, is unconstitutional, and that in one material respect the ordinance is broader in its scope than the authority conferred by the act.
On submission of the case the court held that the act and ordinance were both unconstitutional, to the extent that they sought to cut off defenses and conferred judicial power on the general council; also to the extent that it attempted to exempt the city from the payment of any part of the cost of street improvements, except that provided for in the ordinance; and, further, to the extent that it attempted to give authority to levy an improvement tax upon any corporation using the streets, independently of any contract ordinance. The other parts of the ordinance were held to be valid. From this judgment, the city of Newport has appealed, and appellee has prosecuted a cross-appeal from so much of the judgment as holds that the remainder of the ordinance is valid.
By the act referred to, a very elaborate system for improving the streets, public ways, sidewalks, etc., in cities of the second class is provided. The act is too long to be copied in an opinion; suffice it to say that it provides that the cost of improvements of public ways and sidewalks shall be made at the exclusive cost of the owners of real estate abutting on such improvements, with the exception of that portion of the street occupied by a street railway company, the cost of which is to be borne by the street railway company. The city is not liable for any part of the tax, except for improvements in front of its property, or for the improvement of street intersections.
Before the general council orders the improvement of any street, sidewalk, etc., it is required to adopt a resolution, designating, the street or other public way or sidewalk proposed to be improved, and setting out in general terms the character and extent of the proposed improvement, and declaring such an improvement to be necessary. Such resolution must be published in one or more of the issues of the official newspaper for at least five days before the ordinance ordering such improvement shall pass either board of the general council. Where the abutting property owner designates the material to be used, or protests against that directed to be used, or protests against the improvement, the ordinance fixing the material or ordering the improvement must be passed by a two-thirds vote of the members elected to each board of the general council.
The general council is given authority, upon petition of a majority of the property owners on a part of the public way proposed to be improved, to grant them permission to improve said public way under the supervision of, and within such time as may be fixed by, the board of public works. Provision is made for notifying the abutting property owners of the time and place fixed for the reception of the work, and for giving them an opportunity to protest, in writing, against the acceptance of the work. The general council is made the sole judge of the necessity of the improvement, and their determination whether or not the work has been done in accordance with the contract is final and conclusive and binding on all parties, except in cases of fraud or collusion on the part of the general council.
There is another provision to the effect that any assessment for street improvement that exceeds one-half the value of the lot or parcel of real estate upon which the assessment is made shall be void as to such excess; but the improvement shall be taken into consideration in fixing the value of such real estate, and the general council may provide for the payment of any such excess out of the general fund.
Aside from the particular objections to the act, which will be hereafter noticed, we are of opinion that the changes made in the old law are principally in the interest of the taxpayer.
One of the provisions of the act, and the ordinance enacted in pursuance thereto, which is strenuously objected to, is as follows: "Nor shall any error in the proceedings of the general council exempt any property from the lien for, or payment of, such taxes after the work has been done and accepted, as provided by this section, but the general council, or the courts in which suits are pending, shall make such corrections, rules and orders to do justice to all parties concerned; and in no event shall the city be liable for any part of the costs of such improvements, except as provided in section 3096."
A provision similar to the above was in force in cities of the second class prior to the adoption of the new act, and is now in force in cities of other classes, and have been uniformly acted upon and held to be valid. City of Louisville v. Clark, 105 Ky. 392, 49 S.W. 18, 20 Ky. Law Rep. 1265; City of Louisville v. Gleason, 106 Ky. 125, 50 S.W. 67, 20 Ky. Law Rep. 1694.
It was certainly within the province of the Legislature to enact that "in no event shall the city be liable for any part of the costs of such improvements, except as provided in section 3096"; and that provision is therefore valid. The question of its interpretation is not now properly before us.
In section 3096 of the act in question, there is the following provision: ...
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