54 Ky. 491 | Ky. Ct. App. | 1854
delivered the opinion of the Court—
This action was brought by Southgate to recover from the city of Covington $676, assessed under an ordinance of the city, and paid by him as a tax for the year 1852, upon one hundred and sixty-seven acres of land, of which he is the owner, and which was included within the boundaries of the city without his consent, by an act of the Legislature, passed in 1850. The tax, having sbeen assessed, was paid to the city treasurer, under protest, and with reservation of the right to question its legality by a suit to recover it back.
The plaintiff alleges that his land has been and is appropriated to fields, pasture-land, and wood-land; that there is much vacant ground between it and the populous parts of the city; that but few houses are near it, and it is not necessary for any purposes of
The city, by its answer, puts most of these allegagations in issue, and alleges that the town has extended, with houses and inhabitants, on two sides of the plaintiff’s land; that there are many houses near it, and streets leading towards it in different directions ; that it i's needed for affording a passage from one part of the city to another, and that it is worth $3,000 per acre as city property, &c. The answer also alleges that the plaintiff, after opposing the act providing for extending the limits of the city, agreed to the extension on condition that his land should not be taxed for two years, which condition was acceded to and faithfully observed by the city.
The law and facts were submitted to' the court, and upon hearing the evidence, which is incorporated in a bill of exceptions, the court rendered judgment in favor of the plaintiff, according to the prayer of the petition. To reverse that judgment the defendant appealed to this court.
It appears from the evidence that there are but few houses and many'vacant lots in that part of the city which adjoins and is near the plaintiff’s land, upon which there are neither lots, nor, so far as it is included within the extended boundary, are there any buildings for residence. And although it might be convenient to a portion of the city to have a passage over this land, it does not appear that even for that purpose it was necessary to include any large portion of it. Nor is the alleged consent of the plaintiff established by the evidence.
It appears from the plat or map of the city, which forms a part' of the evidence in the case, that the land of Southgate, included in the extension, adjoins the former boundary for a considerable distance, but runs out a greater distance between lines which approach each other so as to leave but a short line between them, when they reach the extended or new
Even if the land of Southgate be lawfully within the city, it cannot be coercively appropriated for streets, without that compensation which the constitution secures for private property taken for public use. And there is certainly no power to take any part of it for buildings or other private uses, but by contract with him. Then the only apparent purpose to be effected by including his land within the city against his consent, is, that of subjecting it to taxation for the benefit of the city, and without any advantage to him. If he owns other property, or has a place of business within the city, he doubtless bears therefor the appropriate common burthens, to which others, under like circumstances, are subject.
As Southgate has made no town upon his land and desires none, as there appears to have been no legitimate necessity which might justify the extension of the boundary so as to include it within the city against his consent, and as the obvious effect and probable purpose on the part of the city was to subject it to taxation for her own exclusive benefit, it would seem that if there can be a case of taking private property for public use in the form of taxation under color of an extension of the boundaries of a town or city, and without making compensation therefor, this must be regarded as one. That there may be such a case, is plainly admitted and clearly shown in the opinion of this court rendered in the case of Cheaney vs. Hooser, 9 B. Monroe, 344 and 345. And in the page last cited one of the instances stated as an example of such a case is where it is “palpable that persons or property are subjected to a local burthen for the benefit of others, or for purposes in which they have no interest, and to which they are therefore not justly bound to contribute.” The case before us presents, as we think, the essential features of the case just stated. And as the legislative establishment or declaration of the extended boundary having been procured by the city may be regarded ■ as her act, though under the legislative sanction, of which she has taken or attempted to take the benefit by the tax imposed upon Southgate’s land, we think this is a case of taking private property for public use under the form of taxation, and that it is within the prohibitory clause of the constitution, and therefore unconstitutional and void. It follows that the assessment of this land for taxation by the city was without authority, and that she has no right to the money paid and received as tax under said assessment.
But it is the tax and not the boundary which is unconstitutional, and the city may still regard the land now in question as within her boundary, but -subject to no other burthens than other lands not
Wherefore, the judgment is affirmed.