Hager v. Gast

• Decision Date: 19 January 1905
• Parties: HAGER, Auditor, v. GAST.
• Court: Kentucky Court of Appeals

84 S.W. 556

119 Ky. 502

HAGER, Auditor, v. GAST.

Court of Appeals of Kentucky.

January 19, 1905

Appeal from Circuit Court, Franklin County.

"To be officially reported."

Mandamus proceedings by Jacob Gast against S.W. Hager, State Auditor. From a judgment awarding the writ as prayed, defendant appeals. Affirmed.

N. B Hays and Lorine Mix, for appellant.

Wm Furlong and H. L. Stone, for appellee.

HOBSON C.J.

The state of Kentucky owns a lot of land in Louisville on which is situated the Kentucky Institute for the Blind. The institute was originally located outside of the city boundary, but as the city has grown its limits have been extended until the city takes in the property, and streets have been opened adjoining it. The city council ordained that these streets should be improved at the cost of the adjoining owners. Appellee, Gosnell, was the contractor who did the work under the ordinance of the city and the contract made with him by it. Section 2833a, Ky. St. 1903, is as follows "That when any public way, or other public improvement of any city of the first class in this commonwealth, is ordered or directed, by ordinance of the general council of said city to be constructed, which, according to the provisions of the act for the government of that class of cities, may be lawfully constructed at the cost of the owners of the lots of ground adjacent to such improvement, or within the taxable limits therefor, defined as provided in such act and any such real estate within such taxable limits is owned by the state of Kentucky, or is held in trust for the public use of the state, the proportionate part of the cost of making such public way or other public improvement shall be apportioned against the real estate of the state in like manner as against other lots of ground within such taxable limits, and apportionment warrant or statement thereof shall be certified by the board of public works of such city to the Auditor of Public Accounts, who shall thereupon draw on the State Treasurer for the amount of such apportionment warrant or certified statement in favor of the person named therein as entitled to the amount thereof, and the State Treasurer shall pay said warrant drawn by the auditor out of any money in the treasury not otherwise appropriated." The auditor having refused to draw his warrant on the treasurer for the amount of the apportionment warrant issued by the city for Gosnell as provided by the statute, this suit was instituted for a mandamus compelling him to draw his warrant on the State Treasurer therefor. The auditor filed an answer, to which the court sustained a demurrer, and, he failing to plead further, awarded the mandamus as prayed. The only questions raised by the answer are matters of law.

It is insisted that the statute is unconstitutional, because it is local or special legislation, as it applies only to the city of Louisville, and is in conflict with sections 59 and 60 of the Constitution. The act is a part of the law governing cities of the first class. It is true, Louisville is the only city of the first class in the commonwealth; but this is immaterial. Section 156 of the Constitution provides that the cities and towns of the commonwealth shall be divided into six classes, and that the organization and powers of each class shall be...