Vogt v. City of Oakdale

• Decision Date: 18 November 1915
• Citation: 166 Ky. 810,179 S.W. 1037
• Parties: VOGT v. CITY OF OAKDALE.
• Court: Kentucky Court of Appeals

179 S.W. 1037

166 Ky. 810

VOGT v. CITY OF OAKDALE.

Court of Appeals of Kentucky.

November 18, 1915

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by Ella Vogt against the City of Oakdale. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

W. S Sanford, of Louisville, for appellant.

Chapeze & Crawford, of Louisville, for appellee.

NUNN J.

Oakdale is a city of the fifth class. By an ordinance duly adopted it provided for the construction of a carriageway 30 feet wide on Kenton street, and, after advertising for bids, let the contract therefor according to the plans and specifications. The ordinance was passed and the street improvement attempted under the act of 1912, which is now section 3643 of the Kentucky Statutes. Under authority of the statute the ordinance provided that:

"Said work shall be done at the cost of the owners of the ground fronting and abutting upon said street according to the number of front feet owned by each of them respectively. * * * That the portion of said work charged to and assessed against the property owners shall be paid for on the ten year bond plan as provided for in the act of the General Assembly 1912."

Under the statute the charge against an abutting property owner--

"shall not exceed fifty per centum of the value of the ground after such improvement is made, excluding the value of the buildings and other improvements upon the property so improved."

Except at the corners, the lots on Kenton street fronted 50 feet and extended back 200 feet, but appellant's lot, which was a corner, fronted 50 feet on Grand boulevard, and extended back 200 feet on Kenton street. It will thus be seen that upon the front-foot basis she will have to pay four times as much for the street improvement on Kenton street as the other lot owners on that street, excluding the corners, although the square foot area of her lot is no greater. She complains: (1) That the statute which provides for street construction on the front-foot basis is in violation of the fourteenth amendment to the United States Constitution, because it amounts to taking of property without due process of law, and because it is a tax assessment upon her property made without considering equality of burden as between the owners of similar property; (2) that it is in violation of section 171 of the Kentucky Constitution, requiring uniformity of taxes upon all property within the same territorial limit; (3) that it is in violation of section 157 of the Kentucky Constitution, because city taxation is increased beyond the limit therein authorized. Upon these grounds she instituted an action in equity to enjoin the city and its officers from constructing Kenton street at the expense of the abutting property owners, and from issuing or selling bonds to pay therefor. The lower court sustained demurrer to her petition and she appeals. In our opinion the facts alleged do not entitle her to the relief prayed for, nor do they raise any of the questions above set forth. No averment is made as to the value of her, or other, property on Kenton street. There is no claim of spoliation; no claim of an expense in excess of the benefits to be received; no claim for an expense in excess of 50 per cent. of the value of her property. She merely alleges, in the form of conclusions, that her property--

"is no more valuable per square foot than many other pieces of property abutting thereon, and that this plaintiff's apportionment for said improvement will be many times greater, in proportion to the value of her property, than many other owners of property abutting upon said improvement."

"It is a fundamental doctrine of American jurisprudence that those receiving special benefits from the public should make compensation for them * * * and the levy upon property specially benefited of a cost of a local improvement is but a further application of this same doctrine. * * * An assessment...