88 Ky. 206 | Ky. Ct. App. | 1889
Lead Opinion
delivered the opinion or the court.
This case is brought here to determine the validity of an act of the Legislature amending the charter of the city of Covington, approved March 5, 1876, and also the validity of an ordinance passed in pursuance of its provisions.
The city council, by a regular proceeding in the mayor’s court, condemned certain lots or parcels of lots in the city for the purpose of extending Stewart street from its present western terminus to Russell street. The regularity of the condemnation proceedings are not involved, and we must infer were such as the law authorized; and if not, the parties whose property has been condemned may appeal to the cir•cuit court, and from that to this court as in other cases. t
The appellees were the owners of the ground, or a part of it, taken by the city for the purpose contemplated, and owned land bordering on the improvement; in fact, the appropriation of a part of these lots left the balance bordering on the street.
The appellees instituted this action, enjoining the •city and the tax collector from collecting any tax from them to pay for this improvement, and the •chancellor, upon the facts alleged in the petition, perpetuated an injunction as to the tax, but held the pro
The ground upon which the chancellor sustained the injunction was, that the land of the appellees had been taken for public use without constitutional compensation.
It was alleged in the petition by the appellees that the special tax levied on the realty belonging to them and bordering on the street, was equal or amounted to more than the value of their realty taken for the street, and, therefore, their property had been taken without any compensation whatever. That the tax imposed is ■equal to, and as to one or two of the appellees exceeds, the value of the property taken, is conceded. The act of March 6, 1876, is as follows:
“Whenever the. said city shall have acquired, by purchase or condemnation, any land or material for the opening, extending or widening of any street, etc., or part thereof within said city, its city council shall have the power to assess a special tax upon the lot or lots or parcels of land fronting or abutting on the said street, * * according to the front feet, for such distance along the same, not less than a square’s length if the square is laid out, or not less t^an four hundred feet if there is no square, as they- shall provide in their resolutions directing the purchase or condemnation, or they may assess according to valuation at the same on the city assessor’s last book of assess*210 ments, or they may assess any property benefited' according to benefits. Said tax to be used to pay the-cost and expense of such purchase or condemnation, or to reimburse the city treasury if said cost and expenses shall have been previously paid therefrom, *" and the proceedings of condemnation shall be regulated by the provisions of section 4, article 6 of the-act of March 2, 1850.”
Counsel for the appellee in this case insists that the exaction of this tax on the value of the property abutting on the street, as provided by the enactment of March, 1876, is substituting for compensation to the-owners of the property taken, the benefits derived instead of money equivalent, as required by the Constitution. This view of the question presented arises from the fact that all taxation imposed in cases like this is based upon an actual or supposed local benefit, and, therefore, as a part of appellees’ lots have been taken, the remaining realty out of which the street has-been carved is taxed solely on account of the local benefits derived, and that when they pay this tax there is nothing left in the way of compensation but the enhanced value of their adjoining property or the peculiar benefits resulting from the improvement.
It is manifest that nothing can, under our Constitution, be deducted from the value of the property taken by way of condemnation. Neither the State, county or municipality can assert benefits or advantages to the citizen as a recompense for the appropriation of his property to the use of the public. He is entitled to its valúe in money, to be paid before entry. Recognizing this principle as the settled doctrine of this State, it is
In the case of Sutton’s heirs v. City of Louisville, 5 Dana, 28, the jury, in determining the value of the land for the street, was authorized to set off the advantages and benefits to the owner by reason of the improvement against the value of the land, and it was held unconstitutional. In this case the appellees have been given the value of their land without reference to the advantages to be derived from the street extension, and have been taxed as all other owners of real estate situate in the city are taxed. The tax may exceed the value of the land taken, and is imposed because of local benefits derived, but producing that equality in the common burden for like improvements it is constitutional taxation.
In the case of City of Lexington v. McQuillan’s heirs, 9 Dana, 513, it is said “that whenever the property of the citizen is taken from him by the sovereign law, and appropriated without his consent to the benefit of the public, an exaction should not be considered as a tax, unless similar contribution be made by that public itself, or shall be exacted rather by the same public law from such constituent members of the same community generally as own the same kind of property.” Where the same kind of property is subjected alike to the same common burden, the taxation, if otherwise unobjectionable, has always been sustained. >
This is a condition precedent to the right of entry, and when paid, the assessment may be made as provided by the charter. While the assessment may equal the value of the property taken, it affords no reason for applying the doctrine of set off in a case like this. The owner must be paid his money, and then required to pay his part of the common burden.
The judgment below is reversed on the original, and affirmed on the cross-appeal, and remanded for proceedings consistent with this opinion.
Rehearing
To a petition for rehearing, filed by counsel for appellees,
delivered the following response of the court:
The act of 1871, approved on the 21st of March, was not referred to on the original hearing. The provisions of that act authorized the council, whenever the city of
To this extent the act of 1871 stands unaffected by the amendment of 1876, this last amendment applying and providing the mode for the ordinary construction and improvement of the streets of the city:
This court held at the present term in the case of Frantz v. Jacob,
See page525of this volume, The opinion referred to was filed after the opinion in this case was filed, but before the response to petition forrohearing was filed.