141 Ky. 838 | Ky. Ct. App. | 1911
Opinion op the Court by
-Reversing.
These three appeals presenting substantially the same questions were heard together and may be disposed of in one opinion.
The appellees were the owners of corner lots in the city of Latonia ’during the time it was a fourth class city, and these lots were charged with the cost of sewer, street and sidewalk improvements made and constructed by the city of Latonia under the ten year bond and installment plan. o In 1909 Latonia was annexed to the city of Covington, a city of the second class, and the latter city thereby became invested with all the authority in the collection of these local assessments that the city of Latonia possessed before the annexation. Thereafter, the appellees brought these equitable actions against the city of Covington to restrain it from collecting assessments against their respective lots for sewer, street and sidewalk improvements, in excess of one-half the value of the lots. They averred that the charter of the city of Latonia limited the amount that might be assessed against each lot and that without authority so to do it had-assessed against their respective lots for these improvements an amount in excess of the sum allowed to be assessed by the statute. The city in its answer set up that as the lots were corner lots, the city of Latonia had the authority to charge them with the cost of improving each street they abutted on in an amount not exceeding one-half of the value of the lots, and in addition thereto with the cost of sewer improvements. It further insisted that there was a defect of parties, and also that the appellees were estopped from bringing these actions.
The cost of the improvements, as well as the value of the lots being practically agreed on, the lower court held that the assessment on account of the improvement of both streets for sewers, sidewalks, and streets could not exceed one-half the value of the lot. It was further
The sections of the Kentucky Statutes applicable to the questions relating to the amount of the assessments •are section 3578, reading:
. “No city of the fourth class, by virtue of any authority it has to improve its street or other public ways at the cost of the owners of ground fronting or abutting thereon, have authority to charge the ground or the owner thereof on account of such improvements with more than one-half the value of such ground, after the improvement is made, excluding the value of buildings and other improvements upon the property so improved.”
The sewers were built under authority of subsection 9 of section 3490, providing that the city had the right:
“To construct sewers along or under any of the streets, alleys or highways of the city, and may assess the entire cost, including the intersections, of constructing the same, to an amount not exceeding one dollar per front foot of the abutting property, upon the lots and lands bounding or abutting upon said streets, alleys or highways in, under and along which the sewers shall have been constructed; the cost of the construction of sewers not exceeding said sum of one dollar per front foot of the abutting property, shall be apportioned equally on the said abutting lot owners according to the front or abutting feet. * * * ”
' Sections 3102 and 3105 ’of the Kentucky Statutes, relating to second class cities, contain substantially the same provisions in relation to assessment for street and sewer improvements as do the sections relating to this subject in the charter of cities of the fourth class.
Counsel for appellees insist that when the city has assessed a corner lot for the improvement of the street or public way on either street in a sum equal to one-half the value of the lot, it is thereby estopped from assessing against .the lot the cost of improving the street or public way on the other street, and that the charge for constructing sewers is to be treated as a part of the improvement of the street or public way in determining .the amount that may be assessed. While counsel for the city contends that the city has the power to charge a cor:aer lot with the cost of street and public way improvements on each street to the extent of one-half the value of the lot; and in addition thereto with the cost of sewer
“A lot fronting on two streets has more advantages, and consequently more value, than if it fronted on one only. As equality of public burdens is a cardinal consideration in their imposition, it must follow that the lot that gets twice as much advantage from a public improvement as another must pay twice as much of the cost of the improvement as the latter. * * * If this lot then fronts on two or more streets, each of which must needs be improved as a whole, or for á considerable distance passing his property; he must contribute ratably with his neighbors in doing the work, although as a matter of fact some part of the work can not be shown to be of actual and direct benefit to his abutting property.”
And also in Anderson v. Bitzer, 20 Ky. Law Rep., 1450, where it is said:
“It is insisted that appellants’ property fronts on Chestnut street and not on Sixth street, as their improvements are on Chestnut street. Their lot is a corner lot, and under the statute the location of the improvements is immaterial. The corner lot must be charged with its proportionate share of the sidewalk on both streets,” To*843 the same effect-is Meyer v. City of Covington, 103 Ky., 546; Page & Jones on Taxation by Assessments, sec. 561.
We therefore conclude, First: That when a corner lot is assessed for the cost of “improving the streets or other public ways” upon one street upon which it'abuts, that the cost of this improvement is not to be considered in estimating the charge that may be made against the lot for improving the other street on. which it abuts. But the cost of improving each street, independent of the other, cannot exceed one half the value of the ground, after the improvement is made, “excluding the value of the buildings and other improvements upon the property so improved.” Second: That when such a lot is improved on one street, the amount that may be charged against the lot for improving the other street is to be estimated_ on its value after both streets have been improved, In other words, if the value of a corner lot after the improvement of A. street upon which it abuts is $600.00, then it may be assessed for the improvement of this street $300.00; and if,the improvement of B. street upon which it also abrits will increase its value $200.00, then, its value for the purpose of estimating the charge that may he put on it for the improvement of B. street is to be estimated at $800.00.
The next question is, can a lot be assessed with the cost of building sewers in addition to the charge against it for the improvement of “streets or other public ways,” and without reference to the limitation imposed in the statute treating of streets and public ways, or, is the cost of sewers to be included in estimating the total amount that may be charged against the lot for street and public way improvements. It will be observed that section 3578, supra, limits the assessment for the cost of improving “streets or other public ways” to one half the value of the ground after the improvement is made. Naturally the first question that suggests itself is, are sewers included in the expression “streets or other public ways. ’ ’ If they are, of course the limitation provided in section 3578 applies to sewers; on the other hand, if they are not, the limitation does not apply. The statute treats of streets and public ways in one section and sewers in another. A different standard is applied to each. In fact, there is wide difference between these municipal improvements. Streets and other public ways are words of large meaning in municipal affairs, and are often used interchangeably. Each may be said to include
“In cities of the first grade of the first class, and in corporations in counties containing a city of the first grade of the first class, the tax or assessment especially levied or assessed upon any lot or land for any^improvement shall not, except as provided in section 2272, exceed twenty-five per cent, of the value of such lot or land after the improvement is made, and the cost exceeding that per cent, shall be paid by the corporation; out of its general revenue” * * * and the court held that the limitation applied to sewers, although in another sec-' tion relating to the same subject there .was a provision that the assessment for sewers should not exceed “the sum of two dollars per front foot on the property assessed.” The decision of the court was evidently rested upon the ground that the word “improvement” embraced sewers. Of the correctness of this conclusion, we have no doubt. Clearly, a sewer is a municipal improvement, but this admission is far away from conceding that it is included in the words “streets- or other public ways.” If the legislature had intended to apply the limitation mentioned in section 3578 to municipal improvements of all kinds, it could easily have done so by using the word “improvements” in place of the words “streets or other public ways.”
The next question to be disposed of is the contention of counsel for the city that the holders of the street improvement bonds should have been brought before the court in these cases. The improvements mentioned were made upon the ten year installment plan, under authority of section 3573, et seq., of the Kentucky Statutes. Provision is made in these sections for the issual by the city of street improvement bonds. These bonds are payable to bearer, and the property charged with the improvement is in lien to secure the payment of the annual installments as they become due. When collected by the city, these assessments are applied to the payment of the bonds, and the interest thereon. The statute also provides that the city may at any time after one installment remains delinquent for thirty days bring a suit in
The city also complains of the action of the lower court in sustaining a demurrer to that paragraph of the
WTierefore the judgment in each case is reversed with directions to proceed in each case in conformity with this opinion.