125 Ky. 497 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
The general connoil of the city of Louisville enacted: an ordinance for-the original construction of Rosewood avenue, between Baxter and Von Borries ave^ nues, with asphalt. The body of the ordinance is as follows:
“Be it ordained by the general council of the city of Louisville
“That the carriageway of Rosewood avenue from.' the southwest line of Baxter avenue to the northeast line of Von Borries avenue, shall he thirty-six (36) feet in width, and shall he improved by grading, curbing, and paving with asphalt pavement, in accordance with the plans and specifications on file in the office of the board of public works. Said work shall he done at the cost of the owners of the ground, as provided
The contract to construct the work provided for in the foregoing ordinance was awarded to the American Standard Asphalt Company, and the improvement made as prescribed by the ordinance, the specifications on file in the office of the board of public works, and according to the terms of the contract, and was thereafter duly received by the proper officers of the city of Louisville. No technical questions of procedure, or as to the manner in which the work was done, are made in this record. The problem is one of apportionment only. The subjoined map will show the topography of the territory surrounding the improvement involved in this action. The red lines on either side of Rosewood avenue mark the limits of the tax districts originally established by the general council.
The municipality evidently regarded the territory on both sides of Rosewood avenue, between Baxter and Yon Borries avenues, as properly divided into squáres by being surrounded on all sides by principal streets. This is shown by the mode of apportionment
The quarter squares to the west of the improvement lie between Rosewood avenue and a line parallel with it 349 feet distant. On the east the-next street running parallel is nearly 1,500 feet distant, and the territory embraced within the four streets cdmprises 47 acres; and, if this be assumed to be a square, the taxing district on that side is composed of the property lying between Rosewood avenue and a parallel line 744 feet distant. This territory is so large as to at once carry conviction to the mind that it ought not to be considered a square, as it must, as shown in the record, soon be divided into smaller squares by cross-streets, and much of the property which would be taxed now for Rosewood avenue will be called on to pay for improvements on these cross-streets to such an extent as to perhaps amount to spoliation. The chancellor reached the conclusion that the territory to the east of the improvement was so large that it could not be considered a-square within the meaning of the charter of cities of the first class; and in this view we concur. As a result of this conclusion, a reapportionment of the cost of the improvement was ordered;
Section 2833, Ky. Stats., 1903 (cities of the first class), is as follows: “When the improvement is the original construction of any street, road, lane, alley or avenue, such improvement shall be made at the exclusive cost of the owners of lots in each fourth of a square to be equally apportioned by the board of public works, according to the number of feet owned by them respectively, and in such improvements the cost of the curbing shall constitute a part of the cost of the construction of the street or avenue, and not of the sidewalk. Each subdivision of territory bounded on all sides by principal streets shall be deemed a square. When the territory contiguous to any public way is not defined into squares by principal streets, the ordinance providing for the improvement of such public ways shall state the depth on both sides
But does it necessarily follow that it must lose any part of' the contract price of its work as against the property holders? The ordinance provides that the price of the improvement shall be apportioned as provided by law. Now, what is the requirement of the charter in a case like this ? Here the terirtory on the west side of the improvement was defined into squares. Then, under the express language of the charter, the tax district on that side must be one-half the depth of the squares; and, this being true, the tax'district on the east side can only be the same depth. This is necessary to comply with the requirements of the law of equality of burden. Preston v. Roberts, 12 Bush 584; Cooper v. Nevin, 90 Ky. 88, 11 Ky. Law Rep. 875, 13 S. W. 841. The general council have no more discretion in fixing the tax district for the east side than they have for the west side. Now, this would be different if the territory on neither side was defined into squares. Then, it would be for the local legislature, in their discretion, to fix the depth on
Section 2834, Ky. Stats., 1903, provides, among other things, that “no error in the proceedings of the g’eneral council shall exempt from payment after the work has been done as required by either the ordinance or contract; but the general council, or the courts in which suits may be pending, shall make all corrections, rules and orders to do justice to all parties concerned.” This provision seems, clearly, to give the right to correct now the palpable error made by the council in the original apportionment. The court ought now to do what should have been done then — apportion the whole cost upon the territory fronting the improvement to a depth of 349 feet on both sides. When this is done, there will be no loss to the contractor, and no hardship' upon any property holder, because he will pay now what he should have paid then. This is not in conflict with Loeser v. Redd, 14 Bush 18. In that case was involved the right of the courts to correct an apportionment where the territory on neither* side of the improvement was defined into squares, and where, under the terms of the charter, the council had prescribed the depth of the tax territory, but had established an unequal, and
We perceive no sound reason for straining the law against the contractor. It is not contended that it did not do the work faithfully according to the contract in' every particular. The property holders within the legal tax district have obtained the benefits of Its work, and justly they ought to remunerate it therefor, unless there be some imperative rule or principle of law forbidding it; and we know of none. When the case returns to the lower court, the chan
For these reasons the judgment, upon the direct and the cross appeal, is reversed, and the case remanded for proceedings consistent herewith.