Somsen v. Sanitation Dist. No. 1 of Jefferson County

• Decision Date: 12 November 1946
• Citation: 303 Ky. 284,197 S.W.2d 410
• Parties: SOMSEN v. SANITATION DIST. NO. 1 OF JEFFERSON COUNTY et al.
• Court: Kentucky Court of Appeals

197 S.W.2d 410

303 Ky. 284

SOMSEN v. SANITATION DIST. NO. 1 OF JEFFERSON COUNTY et al. SANITATION DIST. NO. 1 OF JEFFERSON COUNTY et al.

Court of Appeals of Kentucky

November 12, 1946

Appeal from Circuit Court, Jefferson County, Chancery Branch First Division; Lawrence F. Speckman, Judge.

Action by John H. Somsen against Sanitation District No. 1 of Jefferson County and its directors for a declaratory judgment as to the constitutionality of the Sanitation District Law and an injunction against issuance of sewer system bonds thereunder. Judgment for defendants, and plaintiff appeals.

Affirmed.

Woodward, Dawson, Hobson & Fulton, of Louisville for appellant.

Franklin P. Hays, of Louisville, for appellees.

SILER Justice.

This was an action by a taxpayer, John H. Somsen, appellant against a corporate body known as Sanitation District No. 1 of Jefferson County, Kentucky, and its directors, all appellees, under the Declaratory Judgment Law, seeking a judicial declaration as to the constitutionality of Chapter 220, KRS, also as to appellees' right to proceed with their functions under the same chapter, also seeking an injunction to prevent appellees from issuing sewerage system bonds in the amount of $2,000,000 or any other amount, within the provisions of the same chapter.

The chancellor sustained a general demurrer to appellant's petition, adjudged that Chapter 220, KRS, was valid and that appellees had a legal right to issue the proposed bonds to the amount of $2,000,000. From that judgment against him, the appellant taxpayer now prosecutes this appeal.

The legal righteousness of every part of the chancellor's judgment appears to hang entirely upon the question of whether or not Chapter 220, KRS, relating to sanitation districts is constitutional.

Appellant offers two arguments against the constitutionality of this law. He says that (1) this law permits the taking of private property without due process, specifically without actual notice to the property owner, and that (2) this law is a form of local or special legislation.

1. It is true that this law gives the appellees, when duly organized, the right to assess a nominal tax upon property within their district. Therefore, this law does provide, in a way which is nominal but nevertheless real, for the taking of private property to serve the purposes of sanitation in the district. It is also true that in the organizing process of the appellee district there is a theoretical 10% of the property owners who may not know just what is happening to themselves and their property except by what they may learn of these proceedings through reading one or the other of two consecutive notices published in regular editions of some newspaper of general circulation in the sanitation district. This is, of course, not actual notice. It is constructive notice. This law further provides that any property owner of this theoretical 10% group, which had no part in starting the corporate proceedings to organize a sanitation district, may, within 60 days of the giving of the constructive notice, make his objections against the entire proceedings by filing his petition in the circuit court of the sanitation district. Thus, the property owner has the right, under this law, to be heard and to sound off with all his objections after he has read his newspaper and thereby received his notice of the involvement of his property.

It has been declared that the opportunity to be heard is an essential requisite of that thing known as 'due process of law' in judicial proceedings. Postal Telegraph Cable Co. v. City of Newport, 247 U.S. 464, 38 S.Ct 566, 62 L.Ed. 1215. Measured by this declaration, the appellant had his 'due process' because he had a right to be heard, provided of course that the notice, constructively given to him, is deemed sufficient in law to direct his attention to the occurrences at hand. This court has said that 'due process' is always had when a party has sufficient notice and opportunity to make his defense. Louisville & N. R. Co. v. Greenbrier Distillery Co., 170 Ky. 775, 187 S.W. 296. A constructive...