143 Ky. 704 | Ky. Ct. App. | 1911
Opinion OP THE COURT BY
OoMMissionER
Beversing on original and affirming on cross appeal.
In the month of June, 1910, the general council of the city of Newport, a city of the second class, passed an ordinance entitled “An ordinance to amend and reenact an ordinance prescribing the method of procedure governing and regulating the construction and reconstruction of ail public ways and sidewalks in the city of Newport, Kentucky,” approved August 27, 1906. This ordinance was approved by the Mayor on June 22, 1910, and is now in full force and effect. It was enacted for the purpose of complying with and carrying into effect “An act to amend and re-enact sections 3094, 3096, 3097, 3098, 3099, 3100, 3101 and 3102, of the Kentucky Statutes, relating to the control and improvement of streets, public ways, landings, wharves, grounds- and sidewalks in cities of the second class,” which became a law without the approval of the Governor. (See chapter 107, Acts 1910, p. 306.)'
This suit was. brought by - appellee, Albert Silva, against the city of Newport, pursuant to section 3063, of the Kentucky Statutes, for the purpose of testing the validity of the ordinance. The ordinance is attacked on the ground that the act above referred to, and pursuant to which it was passed, is unconstitutional, and that in
, On submision of the case the court held that the act and ordinance were both unconstitutional, to the extent that they sought to cut off defenses and conferred judicial power on the general council; also to the extent that it attempted to exempt the city from the payment of any part of the cost of street improvements except that provided for in the ordinance; and further, to the extent that it attempted to give authority .to levy an in-pro vement-tax upon any corporation using the streets, independently of any contract ordinance. The other parts of the ordinance were held to be valid. From this judgment the city of Newport has appealed, and appel-lee has prosecuted a cross appeal from so much of the judgment as holds that the remainder of the- ordinance is valid.
By the act referred to, a very elaborate system for improving the streets, public ways, sidewalks, etc., in cities of the second class is provided. The act is too long to be copied in an opinion; sufljce it to say that it provides that the cost of improvements of public ways and sidewalks shall be made at the exclusive cost of the owners of real estate abutting on such improvements, with the exception of that portion of the street occupied by a street railway company, the cost of which is to be borne' by the street railway company. The city is not liable for any part of the tax except for improvements in front of its property or for the improvement of street intersections.
Before the general council orders the improvement of any street, sidewalk, etc., it is required to adopt a resolution, designating the street or other public way or sidewalk proposed to be improved, and setting out in general terms the character and extent of the proposed improvement, and declaring such an improvement to be necessary. Such resolution must be published in one or more of the issues of the official newspaper for, at least, five days before the ordinance ordering such improvement shall pass either board of the general council. Where the abutting property owner designates the material to be used, or protests against that directed to be used, or protests against the improvement, the ordinance fixing the material or ordering the improvement
Tbe general council is given authority, upon petition of a majority óf tbe property owners on a part of .the public way proposed to be improved, to grant them permission to improve said public way under the supervision of, and within such time as may be fixed by, the board of public works.
Provision is made for notifying the abutting property owners of the time and place fixed for the reception of the work and for giving them an opportunity to protest, in writing, against the acceptance of the work. The general council is made the sole, judge of the necessity of the improvement, and their determination whether or not the work has been done in accordance with the contract is final and conclusive and binding on all parties, except in cases of fraud or collusion on the part of the general council.
There is another provision to the effect that any assessment for street improvement that exceeds one-half the value of the lot or parcel of real estate upon which the assessment is made, shall be void as to such excess, but the improvement shall be taken into consideration in fixing the value of such real estate, and the general council may provide for the payment of any such excess out of the general fund.
Aside from the particular objections to the act, which will be hereafter' noticed, we are of opinion that the changes made in the old law are principally in the interest of the taxpayer.
One of the provisions of the act, and the ordinance enacted in pursuance thereto, which is strenuously objected to, is as follows:
“Nor shall any error in the proceedings of the general council exempt any property from the lien for, or payment of, such taxes after the work has been done and accepted, as provided by this section, but the general council, or the courts in which suits are pending, shall make such corrections, rules and orders to do justice to all parties concerned; and in no event shall the city be liable for any part of the costs of such improvements, except as provided in section 3096.”
A provision similar to the above, was in force in cities of the second class prior to the adoption of the new act.
It was certainly within the province of the legislature to enact that “in no event shall the city he liable for any part of the costs of such improvements, except as provided in- section 3096/’ and! that provision is, therefore, valid. The question of its interpretation is not now properly before us.
In section 3096 of the act in question there is the following provision:
‘ ‘ When in any such city, having therein a street railway ¡tibe railway company is required by law or its-franchise, or by any contract with the city, to pave or improve ■any part of 'the streets or alleys of the city, proposed to be improved, the cost of paving^sueh portion of such, streets or alleys shall be assessed against such railway company -and a tax shall be levied upon all property, assets and franchises of such company in ¡the city for the paymedt thereof. Such tax shall constitute a first lien upon all the property, assets and franchises of all kinds whatsoever, of such company within the corporate limits of the city, and shall be due and payable at the same time and in the same maimer, and shall bear like interest aisi the taxes assessed against the abutting property. Such railway • company shall have the right to construct its -own part of such proposed improvement, and, if it shall do so, no tax shall be assessed against such company; provided, however, that such company shall, before the letting of the contract for such improvement, elect, by written request presented to the general council, to construct its part of such improvement, and shall execute a bond to the city with good and sufficient surety, to be approved by the Mayor, conditioned that it will do the work of improving such part of the street with such material and according to such plans and specifications, and within such time and subject to such provisions as* the ordinance therefor may prescribe. ’ ’
The provision of the ordinance on this subject is as follows:
“3. Each and every company maintaining or operating street railways within the limits of the city of*709 Newport, Kentucky, and wlio maintain and operate their lines and wires'along, in and over the streets, alleys, highways, parks, public squares or other public places in said city, shall pave and improve the street between the rails of its said tract and eighteen inches on each side of its track or tracks and shall renew the paving of 4he streets between.' the rail's of said track ad eighteen-inches on each side thereof as often as the general council may order, and shall repair said part of said streets whenever, and in such manner as said general council may order and direct.”
The latter part of the above section is in the language of the act.
It will be observed that the language of the act authorizes the assessment of the cost of improvement of certain portions of the streets occupied by street railways only upon such railway companies as are required by law, or by their franchise, or by any contract witE the city, to pave or improve any parts of the streets or alleys of the city, while the ordinance provides that each and every company maintaining or operating street railways within the city'of Newport shall pave and improve ■the streets between the rails of its tracks' ¡and eighteen inches on each side thereof. The circuit court was of opinion that, unless the railway company was required by its francEise, or by a contract with the city, to pave or improve, the general council had no authority to order an improvement made at its expense. The statute, however, does not limit the right to assess the cost of such improvement upon the street railways only that were required by their franchises or contracts with the city to pave or improve, but gives the same right as to eacE railway company tEat is required by law to pave or improve. While it is doubtless true, that where the general council is given the right only to assess the cost-of improvements upon abutting property owners, no right exists to assess any portion of such costs upon street railway companies, as they are in no sense, abutting property owners. (City of Maysville v. Maysville Street Railway Co., 128 Ky., 673); yet, if there be legislative authority to assess any portion of the cost upon street railways, we see no reason why it may not be done; indeed, with few exceptions, the right to do so has been uniformly upheld. (The Cicero and Proviso
The question, then, is: What effect must be given to the language ‘ ‘ required by law. ’ ’ An examination of the language of the act above referred to, with regard to street railway companies, as well as- to other portions ,of the act, convinces us that it was the clear and manifest purpose of the legislature to confer upon the general council power to enact an ordinance requiring street railway companies to pay their proportionate part of the cost of any street, improvement. While the act does not say so in express terms, it does so provide by necessary implication. We think the words “required by law” apply in a case where the general council has passed an ordinance making such requirement; and we, therefore, conclude that section 3 of the ordinance above referred to is authorized by the act itself, and is, therefore, valid.
But it is insisted that the act and ordinance are discriminatory in that they provide for, an assessment and lien against all the property, assess and franchises of a street railway company, whereas in the case of other property owners they provide for such assessments and liens only upon the property abutting the improvements. As a matter of fact, however, the only permanent physic cal property that a street railway company has along any improvement is its rails. These, in and of themselves, are of but little value; its property is represented by its franchise, and the franchise is of such character that it can not well be divided up into parts; it represents one entire property and is incapable of subdivision. Furthermore, the relation of a street railway company to the streets is so different from that of the abutting property owners, we see no reason why street railway companies may not be classified, so far as public improvements are concerned, upon an entirely different basis from that of the abutting property owners. We, therefore, conclude that the Legislature and the general council adopted the only practical method of assessing the cost of the improvements against street railway companies, and that the ordinance is not invalid because one method of assessment is provided for them, and another for abutting property owners.
. Nor do we think that the act,- or ordinance enacted in pursuance -thereto, is invalid because it confers upon the.general council the power to'determine the necessity for- the improvement and to determine finally whether or not the improvement has been made in accordance with the contract, except in case of fraud or collusion on the part of the general council. In making the general council the judge-of the necessity for the improvement the Legislature simply put into the statute a doctrine that has long been recognized by the courts. (Mudge, et al. v. Walker, et al., 28 Ky. Law Rep., 996; Trustees of Hazel Green v. McNabb, 23 Ky. Law Rep., 811; Beckwith v. Louisville Artificial Stone Company, 20, Ky. Law Rep., 1781; Abbott on Municipal Corporations, section 393.)
And in view of the fact that the abutting property owners are given the right, under certain contingencies, to do 'the work themselves, and, in case they do not, the' act and ordinance provide for due notice and full opportunity to protest, as well as to be heard on the ques-' tion whether or not the work has been performed in accordance with the contract, we think it was within the province of the Legislature to confer upon the general council,'whose members are on the ground and can best determine the question, the power finally to determine whether or not the work has been performed in accordance with the contract, except in case of fraud or collu
After careful consideration of the act in question, we fail to find wherein it is unconstitutional, either in whole or in part; and, as the ordinance was enacted pursuant to the authority therein contained, we also conclude that it is valid.
Judgment reversed on the original appeal, and affirmed on the cross appeal.