Board of Trustees v. Gill, 94 Ky. 138

Board of Trustees v. Gill

94 Ky. 138 | Ky. Ct. App. | 1893

JUDGE LEWIS

DELIVERED THE OPINION OE THE COURT.

In 1884 the General Assembly passed an act extending corporate limits of the town of Elkton so as to include, besides property of others, the residence of appellee Gill, and incidentally land used as a lawn and grass lot, lying between the new and old boundary lines. And the tax-collector having, upon refusal of appellee to pay municipal taxes assessed against him for the year 1889, levied on and advertised sale of property to satisfy amount thereof, this action was brought for an injunction restraining such sale, which was granted temporarily, and by the judgment appealed from perpetuated, upon the ground of unconstitutionality of the act.

The general power of the Legislature to extend the limits of a city or town, whereby municipal taxation is imposed upon property hitherto free of it, can not, in view of repeated decisions of this court, be now disputed. And it is only when that power is so exercised as to involve violation of the clause of the Constitution prohibiting taking of private property for public use without just compensation, courts will interpose. But the protection afforded to, and advantages received by, the citizen from a municipal government are, in meaning of the Constitution, just compensation for taxation imposed in order to maintain it. And local taxation authorized by law can not be deemed taking private property without just compensation, unless it is palpable that persons, or *141their property, are subjected to such burthen for benefit of others for purposes in which they have no interest and to which they are, therefore, not justly bound to contribute. (Cheany v. Hooser, 9 B. M., 330; Matthus v. Shields, 2 Met., 553.) Whether the benefit and advantages derived from a municipal government are, in a given case, adequate compensation for local taxation imposed, is not the province of courts to decide, legislative, determination of that matter being conclusive. (Cheany v. Hooser; Swift v. City of Newport, 9 Bush, 39.) For, as said in the first-named case, the limit of legislative discretion in regard thereto “can only consist in the discrimination to be made between what may, with reasonable plausibility, be called a tax, and for which it may be assumed that the objects of the taxation are regarded by the Legislature as forming a just compensation, and that which is palpably not a tax, but is under the form of. a tax, or in some other form, the taking of private property without just compensation.”

Tested by the rule so clearly and firmly fixed by this court, it seems to us there can be no doubt of the validity of the act in question, and consequent liability of appellee for the tax imposed upon him. He states that the quantity of .land upon which he resides is forty-six acres, and that it is used for farming purposes; but the area of that part included within the town limits, fixed by the act of 1884, whereon is his residence, does not, according to the plat filed, appear to much exceed six acres. There is a street improved and kept in repair by the munici*142pality on each side of and adjacent to Ms land, and extending beyond Ms residence. There is another street, lately opened, called Academy street, connecting these two, and extending along the front of his lawn, by which he has access to the railroad depot, and also to the court-house. There is still another, called Allen street, between the two first named, that intersects Academy street, and terminates oppositeappellee’s lawn or yard-gate, two hundred and fifteen yards from his dwelling-house. Along Allen street there has been made, at expense of the municipal government, a sidewalk, by which he can go from his gate to the central part of the town. There is a female academy situated apparently upon the same-block of land that his dwelling-house stands, and not far from it. Opposite to his lawn is a church building, two factories and several dwelling-houses. He has sold off his land several lots, at the rate of three hundred dollars per acre, that for farming purposes could not have been sold at the rate of more than thirty dollars per acre. Upon those lots dwelling-houses have been erected, apparently farther from the public or court-house square than he resides, and upon the farthest out of those lots resides a member of the board of trustees. He is a minister of the G-ospel, and preaches in one of the town church-houses. He also has five or six teachers in the town schools boarding with him. It further appears that population has increased in the last five years in the vicinity of his land, and that there. is no vacant building lot on one of the streets mentioned between a point even farther out than his dwelling-house and *143the court-house square. No street has been opened through his land, nor does it appear to be the pres-sent purpose of the board of trustees to open any. But that fact does not at all affect the question,, whether he, by reason of the relative situation and location of his residence, derives protection and benefits in common with other tax-payers from the municipal government. And especially is it immaterial, in view of the existence of streets already constructed at expense of other tax-payers, that afford him outlet- and convenient way in almost any direction he may wish to go. It is difficult to conceive wherein the act -in question is obnoxious to the clause of the Constitution referred to as heretofore construed and applied by this court, or upon what just or .reasonable ground appellee can be exempted from the taxation imposed.

The judgment is reversed, and cause remanded for dissolution of the injunction and. dismissal of the action.