99 Ky. 515 | Ky. Ct. App. | 1896
delivered tiie opinion of the court
These two cases originated in the Logan Circuit Court,, involve the same questions and stand upon substantially tbe same state of facts, except as to the condition use and
Previous to the passage of said act the boundary of the town was in a very irregular and unsatisfactory shape, and while in 1869 it was a thrifty, though quiet town, having a population of near two thousand souls, with a reasonable prospect of growth and of steady improvement, having the advantage of one railroad, with the prospect of the early construction of another, the main object of the extension of the limits seems to have been to correct theirregular shape of the lines defining the limits of the town and at the same time to extend the jurisdiction of the municipal government over a considerable territory claimed to be actually suburban, although not within the lawful limits of the town. This the act accomplished by describing a perfect square of territory, each of the four sides extending four hundred and ten poles, with the county courthouse and public square in the center.
By a previous act, entitled “An act to amend the charter of the town of Russellville,” approved March 5,1868 (Session
By the act of 1880 the boundary of the town was continued as fixed by the act of 1869, and the municipal authorities were empowered to assess and collect taxes for municipal purposes annually upon all of the real and other property in the town, as of the 10th day of January, upon a list of the “taxable inhabitants and owners of property in said town,”' and the marshal of the town was invested with “all the powers and authority within the town of Russellville to collect' the town tax as sheriffs have in collecting the State tax and county revenue.”
Notwithstanding the ample power of taxation thus conferred on the municipal authorities to assess and collect taxes on their property within the corporate limits of the town, no effort was made by the said authorities to assess or levy or collect from the appellant, Briggs, and the appellee, Beall, taxes upon their land which was brought into the limits of the town by the act of 1869, and afterwards, by the
As we take it, the taxes now involved were assessed in 1893, under the authority of acts in force previous to the passage of the said act of July 3,1893. Action was instituted by each of the parties seeking to enjoin the town and the-collector of the town tax from proceeding to collect taxes,, which had been assessed by the municipal authorities on their said respective parcels of land within the limits of the town.
The issues having been made up in each case, in the case of the appellant, Briggs, the court adjudged, in substance, that his land was lawfully assessed, and that he was liable for the tax, and his petition was dismissed. But in the case of the appellee, Beall, the court adjudged, in brief, that his; land was not lawfully assessed or subject to the tax and that he was not liable thei*efor, and the municipal authorities were perpetually enjoined from proceeding to collect the tax that they were then seeking to collect from him on his said land. These appeals are prosecuted to reverse the judgment in each case.
In the case of Briggs, trustee, it appears that he was living with his family upon twelve, acres of laud that were included within the limits of the town by the acts of 1869 and 1880, which have been referred to, and that the dwelling house and all other improvements were erected thereon in 1872. The track of the Louisville & Nashville Railroad lies in front of this ground and is the south boundary of it. We do not deem it necessary to go into lengthy detail of the facts material, especially in the Briggs’ case. It is sufficient to say that the facts show that, although there was no public street or alley or sidewalk contiguous to his ground,
Appellee Beall was the owner of one hundred and eighty acres of land, situated on the western and northwestern boundary of the town, as established by the act of 1869, but all of his land, up to the commencement of his action, had always been used as farming lands, and only seventy-seven and one-
The foregoing statement contains the -principal facts that are material to the questions raised in the two cases. It is contended by counsel for the appellant, Briggs, and the appellee, Beall, that neither parcel of ground was subject to municipal taxation, briefly because it is not urban property,, and had never been used as such, or divided into lots; that the owners had never consented to the extension of the-boundary of the town so as to include their land within the town limits; that they had never received any benefits from the municipal government, or consented to be taxed by it;• and that to compel them to pay taxes on their said lands to-the town for municipal purposes would be the taking of private property without any compensation. On the other-hand it is contended by counsel for the town that the situation of the two properties is such, with reference to the streets of the town, and with reference to other houses and lots within the limits that are subject to municipal burdens,.
Numerous cases of a character similar to these cases, and in which the same questions were raised, have been decided by this court, and in no such case has it been held that the General Assembly did not have the constitutional power to fix the territorial limits of municipal corporations, either by acts of original incorporation or by subsequent acts extending their boundary lines. We do not understand counsel here to deny that the General Assembly had the constitutional authority to pass the acts of 1869 and 1880, by which the limits of the town of Russellville were extended. Nor do we understand counsel to hold that the municipal power or authority within the limits of the town as defined by those acts is restricted, except in respect of the power to tax the added territory. There were other purposes for which the General Assembly had the constitutional power to extend the jurisdiction of municipal government over territory contiguous to a town or city by extending its limits besides that of taxation. This might be done in any case in anticipation of the future growth of the town or city for the purposes of police protection and the like.
Such an exercise of legislative power was not violative of the constitutional guaranty of private property to the owners, because the land was still their own and could not be taken or appropriated for any public use, such as for streets or alleys, without their consent or without just compensation therefor. (Cheaney v. Hooser, 9 B. Mon., 330; Swift v. City of Newport, 7 Bush, 37.)
In the case of Board of Trustees of Elkton v. Gill, 94 Ky., 138, following Cheaney v. Hooser, supra, and Maltus v. Shields, 2 Met., 553, the doctrine is stated in the following language: “The protection afforded to, and advantages received by the citizen from a municipal government are, in the 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 their property are subjected to such burden for the benefit of others for purposes in which they have no interest, and to which they are, therefore, not bound to contribute.
In that case a parcel of six acres of land, embracing the
In Maltus v. Shields, it was held that a lot of about nine acres in the town of West Covington, upon which the owner resided and. part of which was in cultivation and part containing evergreens and shrubs and a large number of fruit trees, was constitutionally subject to taxation for municipal purposes. •
In the case of Sharp’s ex’or v. Dunnavan, 17 B. Mon., 223, it was held that where a town is extended by improvement, so as to give those living adjacent to the town boundary all the advantages which the citizens enjoy from the local government of the town, the legislature had the constitutional power to extend the limits of the town and subject the owners of the property within the extension to taxation for town purposes, and that the legislative discretion in the location of the lines of the extension could not be questioned or controlled by the court.
In that case thirty-four acres • of land, including the residence of the owner, being a part of a tract of one hundred and forty acres which were used for agricultural purposes only, were brought within the limits of the town by the legislative act. The owner’s residence was situated twenty-five poles from-the original boundary of the town, and one hundred and fifty-five poles from the center of the business part of the town, and near enough to enjoy the advantages of schools, churches and the business of the town. This case and that of Cheaney v. Hooser arose under the act of 1846,
Another case, that of Stites v. Dunnavan (MS. opinion), originated under the same act, in which it was decided that the land of the owner that was brought within the limits of the town by the said act, containing twenty-two acres and used as a residence and for pasturing and other agricultural purposes, was liable to municipal taxation.
The foregoing references are sufficient to show the doctrine that has prevailed in this State upon this question, and the manner in which it has been applied. Applying it to these two cases we find that the facts exhibited by the records before us, fairly viewed, do not make out a case that would authorize the interference of the court in behalf of either appellant Briggs or appellee Beall.
Considering the character and location of their property, its proximity to the two railroads, their depots and shops, running through and located in the town, and to the business portion of the town, the actual and prospective growth of the town, and' the propriety under existing conditions of extending the police jurisdiction of the town over the locality, and the benefits and advantages necessarily afforded to and enjoyed by them by reason of the very existence and presence of the municipal government, in common with other citizens and property owners on whom the burden of maintaining it had been cast, it was, in our opinion, reasonable and just to require them and their property to bear a due (proportion of the burden.
By forbearing for so many years to assess their property, it is manifest that the municipal authorities were not seeking to foster private interests or to lighten the burden of other taxpayers by extending the boundaries of the town, and when at last they did attempt to subject this property
The taxes involved in these cases having been levied and assessed under laws existing before the passage of the act of July 3, 1893, providing for the government of towns of the fifth class, it is not necessary to pass upon any question that.might be raised under any of the provisions of that act bearing upon the question of municipal taxation; nor is it necessary for us to determine the effect of the provisions of our present Constitution, requiring that taxes shall be uniform upon all property subject to taxation “within the territorial limits of the authority levying the tax” and prohibiting the exemption from taxation of any property except such as is exempted by the Constitution. (Copeland v. City of St. Joseph, (Mo.), 29 S. W. Rep., 281.)
It is only necessary to say that under the provisions of the Constitution all property not exempted by that instrument is required to be “assessed for taxation at its fair cash value, estimated at the price it would bring at a fair voluntary sale.” This plain requirement will prevent exorbitant and arbitrary valuations, and placing more than an equal, and just proportion of the public burdens on any tax payer.,
Finding no error in the judgment in the case of Briggs, trustee, the judgment is affirmed; but for the reasons given the judgment in the case of appellee Beall is reversed. It is conceded by counsel for the town that only so much of his property as lies between the O. & N. railroad and Greenville “street” or “pike” ought to be subjected to taxation in this proceeding, and the cause is accordingly remanded with directions to so adjudge.