The City of Louisville v. Hyatt, et al.

Decision Date24 May 1841
Citation41 Ky. 177
CourtKentucky Court of Appeals
PartiesThe City of Louisville <I>vs</I> Hyatt <I>et al.</I>

CHIEF JUSTICE ROBERTSON delivered the Opinion of the Court.

THE 9th section of the charter of the City of Louisville, (1828,) re-enacted and in force yet, provides, "that "the mayor and council shall have power and authority "to cause and procure all the streets and alleys, now established, "or hereafter to be established, to be paved and "turnpiked at the costs and expense of owners of lots "fronting such streets or alleys, and a petition of the "owners of a majority of lots or parts of lots fronting on "any square, shall be sufficient to authorize a contract "for paving or turnpiking the streets or alleys in such "square; Provided, however, the mayor and council, by "their unanimous consent in council, may cause any "street or alley, in any square in said city, to be paved, "&c. at the cost, &c. of the owners of lots, &c. fronting "such streets or alleys, without any petition, and when "such paving, &c. shall be completed, they shall apportion "the costs, &c. equally on the lot holders, and a lien "is hereby created on the lots, &c. for the same."

The 10th section of the charter makes the same provisions in reference to "grading, filling up, and levelling streets;" and an act of 1836 authorizes a suit in chancery for enforcing the statutory lien.

It will be seen, on comparison, that the provisions of the 9th section of the charter of Louisville are substantially the same as those of the 11th section of the charter of Lexington, as quoted and expounded by this Court in the case of The City of Lexington vs M'Quillon's heirs, (9 Dana, 514;) and, therefore, the same authority being given to the mayor and council of each of those cities, by the 9th section of the charter of the one city and the 11th section of the charter of the other city, so far as it may be constitutional, when exercised by Lexington, it must be equally so when exercised in the like manner, by Louisville.

And although we frankly admit that we have never been perfectly satisfied as to the constitutional validity of the power involved and considered in the case of The city of Lexington vs M'Quillon's heirs, supra, yet still feeling, as we did when we decided that case, that we are not able to perceive clearly or to prove satisfactorily that the Legislature, in enacting the 11th section of the charter of Lexington, transcended the boundaries of legislative power prescribed by the supreme organic law of the State, it does seem to us that we should be justly chargable with wandering from the appropriate sphere of the judiciary department, were we, by a subtle elaboration of abstract principles and metaphysical doubts and difficulties, to endeavor to show that such a power may be questionable, and on such unstable and unjudicial ground, to defy and overrule the public will, as clearly announced by the legislative organ. Whenever this Court shall be well convinced that a legislative act is unconstitutional, it should not hesitate to pronounce it so, and therefore, to disregard it as void. But the policy and justice of legislation belong, not to judicial but to legislative discretion. And to merely doubt legislative power is not enough to justify judicial resistance.

We do not feel inclined, therefore, to retract or essentially qualify the opinion in the case of The city of Lexington vs M'Quillon's heirs, neither subsequent reflection nor argument having, in any degree, shaken our judgments as to the correctness of it.

In that opinion we suggested that, so far as improvement of streets may be concerned, the charter had virtually subdivided the city into subordinate quasi municipalities or communities, each consisting of the lot holders in a defined square — and is not this substantially true? Does not the charter of each of the cities of Lexington and Louisville, authorize "the owners of a majority of lots or parts of lots fronting on any square," to require the improvement of any street bounding their square, at the expense of all the owners of ground on their portion of that street, and also authorize the mayor and council, by unanimous vote in council, to make the like improvement of fractions of streets by squares, at the like distributive cost of the local proprietors? And in this anomalous provision, in one aspect of it so democratic and in the other so carefully guarded against oppression or gross injustice, we have been unable to perceive any sufficient ground for deciding that the fundamental law of the State has been violated; and we presume that, in the prudent exercise of this police authority, unreasonable inequality of burthen will rarely, if ever, be imposed, considering the past and prospective improvement of the several squares in the same prescribed mode.

But in this case, on a bill filed by a contractor against several owners of ground on a street fronting their square in Louisville, for enforcing payment of the sums assessed against them respectively, for improving that portion of the street without their consent, but under an ordinance of the mayor and council, the Chancellor decided that the...

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