129 Ky. 607 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirming.
The only question we need consider in this case is: Has the General Assembly of the State the power to enact a law giving cities the right to adopt ordinances imposing upon property abutting upon the streets and public places of the city a tax based upon the frontage of the property for the purpose of defraying the cost of sprinkling the streets and public places upon which the property abuts?
It has been expressly ruled by this court in May-
The question of municipal taxation is one of the most important and intricate public questions of the
But, in answer to all this, the argument is made that, in the absence of constitutional limitation, the Legislature is supreme, and to its wisdom and discretion must be left the settlement of these questions. It is true there is no limitation in the Constitution upon the power to levy improvement taxes, nor definition of what an “improvement tax” is: but it does not follow from this that'the Legislature is so abso
We may therefore announce, as sound in principle and supported by ample authority, the doctrine that special t,axes cannot be levied unless the property charged receives a corresponding physical, material, and substantial benefit from the exaction; and, furthermore, that if the assessment does not confer a
The view we have announced is in harmony with the ruling of the Supreme Court of Illinois in Chicago v. Blair, 149 Ill. 310, 36 N. E. 829, 24 L. R. A. 412, where, in considering a similar question, it was said: “In the nature of things, the sprinkling is only useful while the work is continued. In a few hours the beneficial effects are gone, and the property is worth no more than before the street was sprinkled. It
A contrary view is maintained in State v. Reis, 38 Minn. 371, 38 N. W. 97, where it is said: “The relator’s main contention, however, is that street sprinkling is not an ‘improvement’ within the meaning of this section of the Constitution, because it lacks the element of permanence; that its results are transient; and that, to constitute an improvement, there must be some work or structure, such as a pavement, sidewalk, or the like, that will remain after the labor is performed, and permanently enhance the value of the property. But, if permanence or durability is to be the test, how long must the beneficial results last in order to constitute an improvement? It certainly will not be claimed that the work must be eternal in duration, or imperishable in character. We are unable to see any difference in principle between the work of street sprinkling, the results of which, unless repeated, last but a day, and the construction of a block pavement or wooden sidewalk, which wears out or decays, and has to be rebuilt every few years. When a pavement or sidewalk has worn out, the future value of the property is not enhanced by it, any more than it is by street sprinkling when that ceases Neither do we see that it makes any difference whether the substance applied to the surface .of the street is wood, which has to be renewed every few years, or water, which has to be applied daily. Each benefits the adjacent property as long as it lasts,, and no longer. It is not the agency used, or its comparative durability, but the result accomplished, which
The foregoing opinions present the conflicting views touching this question held by other courts, and, while there is much plausibility in the reasoning of the Minnesota case, we are not impressed with its soundness. There is clearly a difference not only in degree, but in principle, between the occasional and temporary convenience and pleasure that laying the dust in the street confers, and the permanent and useful advantage that comes from well-paved sidewalks or macadam streets that are suitable and serviceable for travel in rain or shine, summer and winter. Abutting property cannot be taxed alone for the convenience or pleasure or comfort of the persons who use the streets, or in order that the neighboring premises may be made more attractive and beautiful to look upon. The rights of the owner must be considered. If his property is taken, he must receive some material substantial benefit as an equivalent for the exaction. The city as a whole may, as we have held, devote a portion of its revenue to this purpose, as indeed it may and often does to the purchase of other conveniences that are esteemed of public service and yet, practically considered, result in doubtful benefits to the general public. But there is no good reason why the individual owner should be burdened, in addition to the heavy load of municipal taxes, with charges that are levied without corresponding benefits.
Judge Hobson, dissenting. The opinion of the-court is based on the case of Chicago v. Blair, 149 Ill. 310, 36 N. E. 829, 24 L. R. A. 412; but the court fails to observe that there the Legislature had not authorized the city to provide that the cost of sprinkling the streets should be paid by special assessments. The Legislature there had only authorized the city to make local improvements by special assessments.. That is not the case here. The Legislature has in .express terms authorized the city to make the assessment for sprinkling the streets precisely as it was-made. That ease is therefore not in point. It was followed in New York Life Insurance Co. v. Prest (C. C.) 71 Fed. 815, a nisi prius opinion by the district judge, who also failed to notice that the case rested on a want of legislative áuthority to the city to do what it had done. Wherever the Legislature has. authorized a special assessment to pay for the sprinkling of the streets, the courts have, as a rule, sustained the legislation. See Stark v. Boston, 180 Mass. 293, 62 N. E. 375; Reinken v. Fushring, 130 Ind. 382, 30 N. E. 414, 15 L. R. A. 624, 30 Am. St. Rep. 247; State v. Reis, 38 Minn. 371, 38 N. W. 97. Special assessments to pay for the sprinkling of the-streets are not unlike special assessments to keep-the streets free from snow and ice or to keep them free from dirt by sweeping, -and these have been, we believe, universally sustained. Carthage v. Frederick, 122 N. Y. 268, 25 N. E. 480, 10 L. R. A. 178, 19 Am. St. Rep. 490; 1 Abbott on Municipal Corporations, section 340, and eases cited. If a tax is levied upon
I therefore dissent from the opinion of the court. Judges Barker and Lassing, concur in this dissent Petition for rehearing hy appellant overruled.