115 Ky. 669 | Ky. Ct. App. | 1903
Reversing.
Appellant city belongs to the fourth class. Thirty years or more ago certain of its streets had been graded and macadamized, at whose cost is not shown. The improvement-was quite deficient. The city council in 1900 determined to improve these ways by building them of fire-clay street paving brick, and to make the cost of the construction a charge against the abutting property. The proceedings were taken under section 3572, Ky. St., which allows: “The original construction of any street, road, alley, market’ space, lane, public square or grounds, wharves, levees, or avenue, may also be made at the exclusive cost of the owners of the lots and parts of lots.or land fronting or abutting or bordering upon the grounds so improved, to be equally apportioned by the board of council according to the number of front feet owned by them respectively.” The ordinance requiring the improvement to be made under the-section quoted was regularly adopted. The contract was let to the lowest bidder, and as required by statute. The contract price of the whole work undertaken was about $25,000. The work has been completed as required by the specifications of the contract, and has been accepted by the city authorities. Under section 3574, Ky. St., the city issued bonds for the payment of the work. That section required the mayor of the city, when the work was undertaken under section 3572, to within 30 days after the signing of the contract issue the bonds of the city in such amount as the council might order, not exceeding the contract price of the work and the expenses of issuing the bonds, which bonds were made redeemable at any time within 10 years. Section 3575, Ky. St., provides an elaborate plan for the payment of the bonds and interest, the substance of which is: The funds arising from a sale of the
This suit was brought by appellees, on their own behalf, as well as on behalf of all others similarly situated, who it was alleged were too numerous to be joined, but whose interest was one in common with appellees, obtaining an injunction against the collection of the assessments made by the city against the abutting property to pay the bonds in question. Appellees are owners of some of the property affected by the assessment. Two grounds were relied on to defeat the city’s right to require appellees’ property, by any sort of tax, to pay for this improvement: First, it is 'claimed that the work was not original construction, but was reconstruction, which is by statute (section 3565) to be borne by the city, and not by the abutting property; and,
Paving the streets with fire-clay paving brick was a radical improvement. For aught the record shows, the old macadamized roadway was an incomplete and insufficient provision for accommodating the public travel. It was probably more in the nature of a temporary makeshift till such time as the growth, affairs and importance of the municipality would justify its making a more permanent and expensive roadway. In McHenry v. Selvage, 99 Ky., 232, 18 R., 473, 35 S. W., 645, a macadamized road had been taken into the city by an extension of its boundary. Upon the city’s directing it to be paved in accordance with a general plan of the street improvements, it was held that this was original, and not reconstruction, within the meaning of the statute. This was followed in Mackin v. Wilson (20 R., 218), 45 S. W., 663. This view of the law seems to have been founded upon the idea that, as the abutting property is most benefited by a radical and permanent improvement, it should bear the cost of it; but, where it has once done that, reconstructions in their nature resembling repairs should be borne by the entire municipality. Until the abutting property has once been compelled to bear this burden, it has not constructed originally the street, which, in justice to all other property within the city, and upon an equal basis under the statute, it should do. We are of opinion
If these bonds, or the cost of this improvement, be deemed a debt or liability of the city, it is admittedly in excess of the revenues and income of the city for the year-1900 (when incurred), and would be void, because, not having been authorized by two-thirds of the voters of the city voting on that subject at an election held for that purpose, it would be in violation of section 157 of the Constitution. It is a-rgued for appellees that the fact that the city has assumed by its bonds to pay for this work makes the liability that of the municipality; that it is not material, as affecting the nature of the liability, whence the city derives its means of discharging it. The construction and maintenance of proper, roadways within its jurisdiction is one of the first duties of a municipality. In. the matter of selecting the time and manner of making such improvements, the town acts legislatively. So it does, too, in providing the manner of the payment for the improvement. It derives this legislative authority, including the power of taxation to that end, by its delegation from the State Legislature, in which is vested all the power of taxation in the State. That such improvements may be made, if. deemed advisable by the proper legislative body, at the exclusive cost of the property primarily and directly benefited thereby, within the limits of such benefit, is a doctrine too long and too often applied in this State, and generally everywhere, to now admit of question or need citation of authorities. When the city directs, as it may, that such improve
A statute very similar to the one here involved, and under a like constitutional provision, was before the Indiana Supreme Court in Quill v. City of Indianapolis, 23 N. E., 788, 7 L. R. A., 681. The conclusions of that court appear to us to fairly state the nature and effect of the obligations. It said: “It is enough to say the remedy of the holders of the bonds or certificates is confined exclusively to the spe
We are of opinion that the bonds first issued in settlement of this work were valid, and not in conflict with section 157 of the Constitution. Whether the second issue of bonds — the refunding bonds referred to — wherein the credit and property of the city are pledged to the payment of the cost of the improvement, as a valid one, may be doubted. City of Covington v. Nadaud, 103 Ky., 455, 20 R., 151, 45 S. W., 498. But we are unable to see wherein appellees are prejudiced by that fact, for, if these are not valid, then they owe the others which were exchanged for them. There does not appear to be any question between the city and the holders of the bonds as to their validity, and if appellees and others liable therefor pay to the city the money owing
The judgment of the circuit court is reversed, and cause remanded, with directions to dismiss appellees' petition and to discharge the injunction.
Petition for rehearing by appellee overruled.