Zehnder v. Barber Asphalt Pav. Co.

• Decision Date: 19 January 1901
• Citation: 106 F. 103
• Parties: ZEHNDER v. BARBER ASPHALT PAVING CO.
• Court: United States Circuit Court, District of Kentucky

106 F. 103

ZEHNDER v. BARBER ASPHALT PAVING CO.

United States Circuit Court, D. Kentucky.

January 19, 1901

Lane &amp Harrison, for plaintiff.

Wm Furlong, for defendant.

EVANS District Judge.

The bill, in substance, alleges that by virtue of the statutes of Kentucky providing for the government of cities of the first class, and of certain ordinances of the general council, the city of Louisville, by contract with defendant, made certain specified improvements of Baxter avenue, in said city, with asphalt pavements; that the ordinances and the statutes require the cost of these improvements to be apportioned equally among the owners of the property according to the number of square feet owned by them respectively, and embraced within certain specified boundaries, but without taking into consideration any estimate of damages or benefits thereto by reason of said improvements; that assessments have been made by the proper authorities of said city, and apportionment warrants have been issued therefor against the complainant's land in the city located within the boundaries so specified, amounting to largely over $2,000 in favor of the defendant, who, under contract with the city and pursuant to the said ordinances, had constructed said improvements, and, further, that defendant, having received the apportionment warrants therefor, is about to proceed to collect the amount thereof by action against the complainant and the said property under the claim that the defendant has a lien upon complainant's said land by reason of the facts stated. The bill also avers that as the assessment and charge against complainant's land was made by the square foot only, and without any inquiry or opportunity for inquiry as to whether the said land was benefited or injured by the improvements aforesaid, he is about to be deprived of his property without due process of law, and is about to be denied in respect thereto the equal protection of the laws all in violation of the fourteenth article of amendments to the constitution of the United States. Upon these grounds the bill asks that the defendant be enjoined from enforcing said warrants and assessments, and the lien claimed thereunder against the complainant's land. As the improvements were doubtless made in good faith by the defendant, the contractor, at great expense, but without any attempt on the part of the complainant, who must have known of the progress of the work, to stop it by an appeal to the protection of the courts before it was finished, and without giving any notice to the defendant that he would resist payment when the improvement was completed, the case is one of much hardship, the stress of which the court has felt and recognized in the consideration of the case. Sections 2832-2839, inclusive, of the Kentucky Statutes, as amended in 1898, embrace the statute law of the state upon the subject. So far as is necessary to any understanding of the case before us, the provisions of the statute are as follows:

'Sec. 2833. When the improvement is the original construction of any street, road, land, alley or avenue, such improvement shall be made at the exclusive cost of the owners of lots in each fourth of a square to be equally apportioned by the board of public works, according to the number of feet owned by them respectively, and in such improvements of the cost of the curbing shall constitute a part of the cost of the construction of the street or avenue, and not of the sidewalk. Each subdivision of the territory bounded on all sides by principal streets shall be deemed a square. When the territory contiguous to any public way is not defined into squares by principal streets, the ordinance providing for the improvement of such public ways shall state the depth on both sides fronting said improvement to be assessed for the cost of making the same accordingly to the number of square feet owned by the parties respectively within the depth, as set out in the ordinance.

'Sec. 2834. A lien shall exist for the cost of original improvement of public ways, for the construction and the reconstruction of sidewalks, and for the digging and walling of public wells and cisterns, for the apportionment and interest thereon at the rate of six per cent. per annum against the respective lots. Payments may be enforced upon the property bound therefor by proceedings in court; and no error in the proceedings of the general council shall exempt from payment after the work has been done as required by either the ordinance or contract; but the general council, or the courts in which suits may be pending, shall make all corrections, rules, and orders to do justice, to all parties concerned; and in no event, if such improvement be made as is provided for, either by ordinance or contract, shall the city be liable for such improvement, without the right to enforce it against the property receiving the benefit thereof; but no ordinance for any original improvement mentioned in this act shall pass both boards of the general council at the same meeting, and at least two weeks shall elapse between the passage of any such ordinance from one board to the other.'

'Sec. 2838. In all actions to enforce liens, a copy of the ordinance authorizing the improvements or work, a copy of the contract therefor, and a copy of the apportionment,-- each attested by the comptroller,-- shall be prima facie evidence of the due passage, approval, and publication of the ordinance, of the due execution and approval of the contract, and shall also be prima facie evidence of every other fact necessary to be established by the plaintiff in such actions to entitle him to the relief authorized to be given in this act. In such actions the court shall provide in its order confirming any report of sale that the defendants, or either of them or any one claiming through or under them, or either of them, or any creditors of theirs, or either of them, may, within two years from the date of such order confirming a report of sale, redeem the land sold by paying to the purchaser the purchase price, with interest thereon from the day of sale, at the rate of six per cent. per annum, and all the taxes and assessments on and against such land paid by such purchaser, with interest thereon at the rate of six per cent. per annum, from the date of such payments; and in the event that there be no redemption within the time allowed, the order of confirmation shall be final, and a deed shall be executed to the purchaser of his assignee.

'Sec. 2839. The board of public works shall make out all apportionment warrants for which liens are given for improvements or public ways, wells, cisterns, water-plugs, and sidewalks, as may be required by ordinance, and within two days thereafter shall enter the same upon a register kept in alphabetical order for that purpose. When the holder of said warrants shall have obtained payment, he shall notify the board of public works, and it shall be marked upon the register as paid. The lien shall exist from the date of the valuable consideration without notice, unless

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