111 Ky. 491 | Ky. Ct. App. | 1901
Opinion op the ■ court by
Reversing.
The action first named was brought by the contractor against a number of persons- owning property on Catalpa street, to subject the property to the payment of an assessment made for the original improvement of Catalpa street between Woodland avenue and Gibson lane. The petition was in the usual form in such -cases, and sufficiently alleged in detail the various steps necessary to create a lien for the cost of the construction. A copy of the ordinance authorizing the improvement, the contract therefor, and the- apportionment, properly- attested • by the comptroller, were filed, as required by Kentucky Statutes, section 2838, to establish prima facie evidence- of' the facts necessary to entitle the contractor to the relief he sought. An answer was filed by appellants, by the first paragraph of which practically all of the affirmativeaverments of the petition were denied, and the remaining seven paragraphs of which present various affirmative defenses, which will be stated as we consider them, in this opinion. The material .averments > of this answer were-denied by the reply. An amended answer was subsequently filed by appellants, by which they undertook to set up the defense that the city had no power to authorize the construction of the street at the cost of the abutting property holders; that the assessment for that cost was-un
The case of Kimberger v. Bitzer—the second case named in the caption — presents almost exactly the same state of pleadings and facts. The cases were heard together in the trial court and in this court, and will be considered together in this opinion.
The questions presented are so numerous, the arguments thereon so voluminous, and the time remaining to us so short, that in these cases, as in the case of Richardson v. Mehler, 111. Ky., 408, 23 R., 917 (63 S. W., 957), we shall not attempt more than a brief statement ofi the facts, the questions, and our conclusions, making no reference to the questions disposed of in the Richardson case.
Questions of Fact.
It is not necessary to state or consider all of the questions of fact raised in this record. A sufficient statement will be made to show the general nature of the questions and the conclusions we have reached. Catalpa street was originally a public way of the town of Parkland, a suburb of the city of Louisville. It was claimed originally by the appellants that it had for a long time been a public way, dedicated to public use, and had been graded and improved. This claim was altered substantially by a denial of the dedication and a denial of the annexation of Parkland. The testimony offered clearly shows that long prior to the annexation it was in general use by the public as a public way; that it‘had been worked about as much as an ordinary dirt road is usually worked in the county outside of the city. Joyes v. Shadburn, 10 Ky. Law Rep., 493. Owing to the sandy nature of the soil, it
The Oonstitutionality of the Kentucky System of Apportionment.
Little time need be spent in considering the question whether the square-foot system of apportionment adopted in this State for cities of the first class, by section 2833, Ky. St., is objectionable under the Kentucky Constitution. The general doctrine is well stated by Dillon as follows:
Spoliation.
The act being constitutional, does this case present such an arbitrary exercise of power thereunder as to work manifest injustice, and come within the rule announced by Judge Holt in Preston v. Rudd, 84 Ky., 156 (7 R., 806), as be
While this system of taxation for local improvements proceeds upon the theory of equivalents, exact compensation has never been deemed attainable; or even hoped for, under any system of law yet devised. The question whether the contiguous territory would be benefited, and the boundary within which benefit therefrom is to be presumed, has uniformly been construed to be a matter of legislative discretion; and, that discretion having been exercised with the presumption of law in favor of its correctness, the courts will not intervene to disturb the legislative determination, except upon a showing of fact so conclusive as amply to justify their interference. No such showing is made by this record. The witnesses for appellants almost uniformly base their evidence that the improvement was harmful, rather than beneficial, upon the injury occasioned by the change of grade, and the increased cost occasioned by the reletting. In Village of Norwood v. Baker, 172 U. S., 278; 19 Sup. Ct., 190; 43 L. Ed., 447, Mr. Justice Harlan, speaking for the court, thus stated the doctrine upon this question: “Undoubtedly abutting owners may be subjected to special assessments to meet the expenses of opening public highways in front of their property; such assessments, according to well-established principles, resting upon the ground that special burdens may be imposed for special or peculiar benefits accruing from public improvements. Mobile Co. v. Kimball, 102 U. S., 691, 703, 704; 26 L. Ed., 238; Illinois Cent. R. R. Co. v. City of Decatur, 147 U. S., 190, 202; 13 Sup. Ct., 293; 37 L. Ed., 132; Bauman v. Ross, 167 U. S., 548, 589; 17 Sup. Ct., 966; 42 L. Ed., 270, and authorities there cited. And according to the weight of judicial au
So, in Preston v. Roberts, 12 Bush, 570, in an opinion by Judge Cofer, it was said: “All municipal assessments are based on the ground that the property subject to assessment is benefited by the improvement for which the assessment is made, and neither the Legislature of the State nor the municipality can constitutionally subject property not actually or presumptive^ benefited by an improvement to assessment to pay the cost of such improvement. It is often difficult, and sometimes impossible, to determine the exact limit to which such benefits extend; •but, from the very nature of the subject, there must be .■authority somewhere to consider that question; and there is, perhaps, no safer mode of dealing with a question environed by such difficulties than to confide the power to the local government, to be exercised subject to supervision by the courts, where the peculiar facts of each' case can be examined and the controversy determined by those
•The courts have gone very far in stating the effect of the presumption of the legislative determination of benefits resulting from .such improvements, and have' perhaps in some eases overstated it as conclusive. Such statements, however, that the legislative determination of benefit is conclusive, are always to be understood as made subject to the constitutional- limitation recognized in the. provision of the old charter of t-he city of Louisville, which is re-enacted in section 2834, Ky. St., and announced in Baptist Church v. McAtee, supra; Preston v. Roberts, 12 Bush, 570; Preston v. Rudd, supra; Frantz v. Jacob, 88 Ky., 525, (11 R., 55) 11 S. W., 654; Gleason v. Barnett, supra; and Walston v. Nevin, 128 U. S., 578, 9 Sup. Ct., 192, 32, L. Ed. 544, —in which is stated the position of the court as to the constitutional limitation. From that position we have never receded or been disposed to recede. See, also, Petter v. Allen (21 R., 1122), (54 S. W., 174); City of Louisville v. Selvage (106 Ky., 730 (21 R., 349) (51 S. W., 447).
Fourteenth Amendment.
Upon the authority of the opinion of Mr. Justice Harlan (Village of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct., 187, 43 L. Ed. 443), an immense volume of’ argument has been devoted to the proposition that the Kentucky statute is violative of the fourteenth amendment to the Constitution of the United States, in that there is no provision made iby the statute for a preliminary hearing as to the extent of special benefits to each piece of property resulting from the improvement. An extended consideration of
Constitutional Provision for Compensation for Injury.
Section 242 of the Constitution provides: “Municipal ■and other corporations, and individuals invested with the privilege of taking private property for public uses, shall make just compensation for property taken, injured or destroyed by them; which compensation shall be paid before such taking, or paid or secured, at the election of such corporation or individual, before such injury or destruction.” This section is relied on as a defense to the assessment, or, if that can not be done, ,as authorizing a recovery over against the city for the amount of the cost of the excavation made necessary by the change of grade of the street. It may be assumed that by a case of City .of Henderson v. McClain, 102 Ky., 402, (19 R. 1450) 43 S. W., 700, 39 L. R. A., 349), it has been settled that a 'change of grade causing damages to abutting property is such an injury as is provided for by this section.
It is contended that no lien was created by the making of Oatalpa, street, that the whole proceeding was void, and that the city and the contractors were mere1 trespassers, while doing the entire work. It may be conceded that, if the injunction had been applied for in proper time, the injury to the abutting lots might have been-prevented until compensation had been made- or secured' for such injury. The fact that several of the appellants obtained damages against the city on account of the change of grade, several of which judgments have been affirmed by this court,, would seem to show that there is no reasonable doubt of the fact of the injury. The question, however, is whether
The authorities cited do not seem to us to sustain the proposition argued by counsel for appellants, viz. that a statute, whether of the State or municipality, which results in injury to property, is unconstitutional unless the statute itself provides for compensation to be made for the injury before it i$ done. The case of the City of Covington v. Worthington, 88 Ky., 206 (11 R., 141), 10 S. W., 790, 11 S. W., 1038, is cited as holding that such a statute failing to provide compensation is void. On the contrary, in that ' case the statute under consideration wras held constitutional. The proposition there stated, that possession can not be taken of condemned property until compensation is made, is elementary. So, too, a statute which provided for taking property for public use without compensation would undoubtedly be unconstitutional. There is no trouble about that proposition. So, too, it might be that a statute which provided for injury of private.property for pub-Hp use, or which provided for the doing of anything from which injury necessarily would result, would be held unconstitutional if it did not provide compensation for the injury. But the vast majority of statutes providing means whereby local improvements shall be made, whether, as in this case, they are' general provisions contained in the charters of municipalities, or provide directly for the specific improvement, the courts can not say that the statute will work injury in all or any of its applications; nor can such statement be predicated of an ordinance' which
Constitutionality of Section 2839, Ky. St.
“The board of public works shall make out all apportionment warrants for which liens are given for improvements of public ways. . . .” It is urged that this is a legislative function, amounts to the imposition of a tax, and can not be performed by a body wffiich in the act creating it is designated as an “executive board.” The authorities cited by appellants upon this question do not seem to us to be at all applicable. The action provided for in the section is making out apportionment warrants. In cases where, as in the cases at bar, the improvement is in a territory bounded by principal streets, the statute itself makes the apportionment in proportion to the number of square feet of land in each fourth of a squáre cóntiguous to the public way improved. When the ordinance is duly passed, the contract executed, and the work done, the cost of the work is by thestatute apportionedamong-the lots in the quarter squares contiguous- to the improvement. The mere making out of the apportionment warrants is. purely clerical and ministerial, and ipay be properly performed by the executive board. If incorrectly performed, the errors therein may be corrected by the court. See Gosnell v. City of Louisville (104 Ky., 201) (46 S. W., 722). It is provided that interest shall not go until the warrants1 are issued by the board. This provision, we assume, is'for the benefit of the property holder, that he may have notice! of the exact amount to which his property is subject; and for this reason we held in Fehler v. Gosnell, supra, that, where
The Constitutionality of the Act for the- Government of Cities of the First Class.
It is claimed-, also, that all that portion of the act for the government of cities of the first class which provides
It may be remarked that the contract appears to have been approved by both boards of the council and signed by the mayor, but we attach no importance to this fact. If a compliance with the’ requirements of the statute, express and implied, does not create the1 lien, it can not be created by unauthorized action of the council.
Warrants nob Approved, by the Council.
It appears that by general ordinance of the city approved June 26, 1891 (Ordinances of Louisville of November, 1895,. p. 10), provision was made that the assessor should furnish the board a list of the names of owners of property, and a description of the ground owned by each, and that when said list and description should be furnished, and the work received as completed, and apportioned by the board of public works, and approved by the general council and the mayor, the city should furnish warrants for the cost of the improvements against the owners of ground, and that the lien for the cost of the improvement should exist from the date of the approval of the apportionment by the mayor. It is insisted that, as the warrants here sued on were not approved by the general council or the mayor, no valid apportionment was made, and no lien ever 'attached. This contention can not be sustained. It may be conceded that the city legislature had power to require
Annexation.
Upon the question of whether the portion of Parkland in which this improvement is situated was annexed to the city of Louisville, we think the record is conclusive, and can not be overcome by the recollection of a witness. Indeed, the witness’ statement that the ordinance was passed by both boards on the same night may be perfectly consistent with the proper passage of the ordinance by one of the boards at a subsequent date, which in Oswald v. Gosnell (21 R., 1660) (56 S. W., 165), was held a sufficient compliance with section 2777, Kentucky Statutes.
Five-Years Guaranty.
We can not concur in the contention for appellants that the five-years guaranty provided for in the general ordinance which was referred to and made a part of the ordinance for the construction or the improvements, and also embodied in the contracts, avails to defeat a recovery. The guaranty clause of the contract has been construed by this court in Fehler v. Gosnell and Gosnell v. City of Louisville, supra. The contractor must be presumed to have contracted with reference to the legal construction of this provision as determined by the court. The judgment of the trial court conforms to the rulings of this court in the cases mentioned, and relieves the taxpayers of ten per cent, of the cost of the improvement. And this, we are bound to presume, was a sufficient relief against
The Grade.
We do not fully und¿rstand the contention of counsel as to the fixing of the grade, in support of which he refers us to Zable v. Orphans’ Home, 92 Ky., 94, 13 R., 385, 17 S. W., 212, 13 L. R. A., 668. In that case it was held that there-was no averment or evidence of the grade having been fixed. But it was, in addition, held that proper averments of the steps leading to the creation of a lien, supported by the exhibits required by the then existing statute to make out a prkna fado case, entitled the plaintiff to a judgment in the face of a mere denial. The requirements stated in that opinion seem to have been met in this case. McHenry v. Selvage, 99 Ky., 232, 18 R., 473, 35 S. W., 645.
Was the Improvement Necessary?
Whether the improvement of Catalpa street was necessary is, we think, a matter committed solely to the determination of the council, subject to the limitations we-have indicated. This doctrine seems1 to be 'abundantly supported1 by the cases of Preston v. Roberts, 12 Bush, 590, and Caperton v. Humpich, 95 Ky., 109 (15 R., 430) 23 S. W., 875.
Claim against City for Compensation for Release of First Contractor.
It appears that at the first letting this work was awarded to one McNaghton, who entered into a contract with good security; that after performing certain work in the same neighborhood, under like contracts, he became insolvent (it is claimed, by reason -of the improper rejection of materials purchased by him to carry on the work), and made
But it is contended on behalf of the city that, if a right of action exists against it for the excess of cost of the Gleason contract over that of ■ McNaghton, the proportion of that excess to which each of the appellants is ■entitled would not be as much as $200; that the right of recovery, if it exists, is to a personal judgment against the city in favor of each individual for his proportion of the excess, and not the aggregate to which all of the appellants, would be entitled; and from this it is insisted that it follows that this court has no jurisdiction of the appeals against 'the city, under Oswald v. Morris, 92 Ky. 48, 13 R., 355, 17 S. W., 167. But the majority of the court are of the opinion that, as the right of recovery grows out of the ordinance and contract, whereby a lien has been im
From this it follows that the judgments in favor of Gleason and Bitzer are affirmed, and the judgments- in favor of the city are reversed, with instructions to enter judgments in conformity with this opinion.