City of Pineville v. Robbins

• Court: Kentucky Court of Appeals
• Writing for the Court: THOMAS, C.J.
• Citation: City of Pineville v. Robbins, 232 Ky. 218, 22 S.W.2d 607 (Ky. Ct. App. 1929)
• Decision Date: 20 December 1929
• Parties: CITY OF PINEVILLE v. ROBBINS, Judge, et al.

22 S.W.2d 607

232 Ky. 218

CITY OF PINEVILLE v. ROBBINS, Judge, et al.

Court of Appeals of Kentucky

December 20, 1929

Appeal from Circuit Court, Bell County.

Action by the City of Pineville against W. T. Robbins, Judge of Bell County, and others. From an adverse judgment, plaintiff appeals. Reversed with directions.

E. B Wilson, of Pineville, for appellant.

Low &amp Bryant, of Pineville, for appellees.

THOMAS C.J.

The city of Pineville is one of the fourth class, having a population of 3,500. It filed this action in the Bell circuit court against Bell county, its fiscal court, and the members thereof, to have it adjudged that Bell county should contribute to the costs of constructing, repairing, and maintaining two bridges within the sparsely settled eastern portion of the corporate limits of the city, one of which is 321 feet long and spans Cumberland river, and the other is shorter and spans Straight creek. Both of those streams run through the referred to portion of the municipality and the bridges are portions of one of its principal streets, and which is also one of the main county roads of the county and upon which about 25 per cent of the population of the county outside of the city is compelled to travel to get to the county seat, the county high school located within the city and other public places of the county. The petition also sought a mandatory order requiring the fiscal court to levy and collect a county tax sufficient to pay one-half the costs of the two bridges, upon the theory that such an amount was a just proportion of such costs that the county should pay. The petition alleged that there were two or three other bridges within the corporate limits in a different part of the city across the same streams which it had constructed and was maintaining, though no contributory relief was sought as to them, but only as to the first mentioned one across Cumberland river, which was in the course of construction and would cost $40,650, and the one across Straight creek that had recently been repaired by the city at a cost of $7,500.

The petition as amended averred that the city of Pineville was located at the apex of a triangle formed by two mountain ranges taking in a large portion of the eastern part of the county amounting to about one-fourth thereof, and that the road which the two bridges in question formed a part was the only means of ingress to the city for the inhabitants of that triangle. It was further averred that the entire present tax rate paid by the rural population of the county, including state, county, and school tax, was $1.79 on each $100 of assessed valuation, $1.15 of which was also paid by the inhabitants of the city, and that there was a municipal rate of taxation of $2.94 per $100 of assessed valuation of the property therein, which made a total rate of all taxes paid by the inhabitants of the city of $4.09 per $100 valuation of property, or $2.30 more than that paid by the rural property owner. It was also further alleged that the city was already taxed for governmental expenses and other valid obligations to the limit of its constitutional authority. The court sustained a demurrer to the petition as amended and dismissed it, to reverse which the city prosecutes this appeal.

This court as far back as February 9, 1877, in the case of Trustees of Elizabethtown v. Hardin County, 9 Ky. Ops. 332, in furtherance of what it concluded was exact justice, held that, under certain conditions, a county should contribute to the construction, repair, and maintenance of a bridge forming a part of a county road although it was located within the corporate limits of a municipal corporation, and the county of Hardin in that case was adjudged to construct a bridge within the corporate limits of Elizabethtown, the county seat of the county. The bridge spanned a stream running through the city and was about 75 feet long and was a part of one of the principal county roads which had theretofore been a turnpike, although it was then within the corporate limits of the city. It is not pointed out in that opinion that there then existed any express constitutional or statutory authority for that adjudication, and in the absence of some such inhibition, the general principles of equity were applied by this court as a foundation for the doctrine therein announced. In stating the basic principles upon which that opinion was rested, this court said: "The citizen of the town is taxed to aid in building all such bridges erected in the county, and when called on by the tax gatherer must contribute in the same proportion with the citizen living outside the town limits. The citizens of the town bear the burden in common with the citizens of the county. If this town was an independent municipality, having no burdens to bear, in the way of taxation, in common with the people of the county, for county improvements, then it might be well argued that the town should make all the improvements within its limits. While the town must keep its streets and alleys in repair, it cannot be said that such a structure as this is to be regarded as a part of the street for the purpose of compelling its population to rebuild or repair it. It is within the county as well as the town limits, and is that character of improvements required to be made by the county court when the necessities of the public demand it."

That opinion was followed and its holding adopted and applied in the later cases of Leslie County v. Wooten, 115 Ky. 850, 75 S.W. 208; 25 Ky. Law Rep. 217; Nelson County v. Bardstown, 124 Ky. 636, 99 S.W. 940, 941, 30 Ky. Law Rep. 870; City of Flemingsburg v. Fleming County, 127 Ky. 120, 105 S.W. 133, 135, 32 Ky. Law Rep. 11; and City of Clinton v. Hickman County, 160 Ky. 687, 170 S.W. 11. The principles underlying the Hardin County case were also recognized as sound in the case of Clay City v. Roberts, 124

Ky 594, 99 S.W. 651, 30 Ky. Law Rep. 820, and those cases are all of the ones from this court that we have been able to find bearing upon or dealing with the question. In each of them the county was made to contribute to the construction, repair, and maintenance of bridges forming a part of a county road, though located within the municipal corporate limits, and in the Wooten case, and perhaps others of them, the county was made to pay the entire costs and which was done because from the size of the city and its sources of revenue it was utterly financially unable to do so. The underlying principle of the doctrine announced by those opinions was but the statement of this court's conception of what was just and right, according to the fundamental principles of equity, under the circumstances and conditions, and which is illustrated by this excerpt from the Wooten opinion...