119 Ky. 824 | Ky. Ct. App. | 1905
Opinion of the court by
Affirming.
The Jefferson.' Southern Pond Draining Company was incorporated by an act of the Legislature of Kentucky in 1858 (2 Acts 1857-58, p. 124, c. 518), and there were amendments to the original act in 1872, 1878 (1 Acts 1873, p. 299, c. 248), 1878 (1 Acts 1877-78, p. 351, c. 288), 1884 (1 Acts 1883-84, p. 1402, c. 788), 1886 (1 Acts 1885-86, p. 1059, c. 426), and 1888 (3 Acts 1887-88, p. 907, c. 1552). The proceedings out of which arose the controversy at bar were had under the charter as amended in 1888. The appellee company was incorporated for the purpose of draining a large body of swamp lands about four or five miles south of Louisville, in Jefferson county, Ky., which, by reason of the water constantly standing upon them, were worthless1, and, by the consequent propagation and dissemination of malaria, were a menace to the health of the citizens of the: surrounding country and of the city of Louisville. The drainage of these lands was to be effected by the digging of deep and wide ditches at intervals through them at sufficient grade to carry off the water, so that the owners between the main ditches could, by tiling, thoroughly drain and render productive their before Avorthless land. The digging of these ditches1, of necessity, required money, and this was to be raised by assessment and taxation authorized by the charter. By the amendment of 1888, the
The appellant insists that the legislation- creating the corporation is unconstitutional, in that it grants special privileges for which no- public service is rendered. It is too late to question that the draining of vast swamps, and thereby improving the health of the whole community, is a matter of public concern. All-public works of the nature of the one under discussion are attended by some private benefit not enjoyed by the general public, but this private benefit does not take from the work the quality of being for the public service. It is hardly necessary to cite authority upon a proposition so obvious, and of which the books are so replete. Perhaps the last utterance of this court on the particular -subject in hand is contained in Duke, etc., v. O’Bryan, etc., 100 Ky., 710, 19 R., 81, 39 S. W., 444, 824, wherein the question is thoroughly discussed, and the distinction between a public and a private benefit, and the effect of the existence of the latter in public works, is pointed out. The amendment of 1888, in its preamble, recites the public benefit of the act as being the promotion of the. health of the community, and this must be taken as true in the absence of any evidence in the record contradicting it.
A second objection to the charter is that the lands to be
Nor is the levy and collection of the tax the taking of private property Avithout due process of law, within the meaning either of the Constitution of this State, -or of the fourteenth amendment of the Constitution of the United States. After the assessment by the commissioners, -they were required to, and did, report their action to the Jefferson chancery court, and appellant Avas- given hi® day in court to sIioav cause against the levy of the obnoxious tax upon' his land. This he failed to do, and, under the terms of the-charter he was concluded by the judgment. The fact that the notice was- by advertisement in the press- and by posters, instead of actual service, does not militate against the conclusiveness of the -judgment. The proceedings- taken in this case with regard to the levy of the assessment, and the right and opportunity of the appellant to show cause against its validity, are substantially the same as tho«e with 'reference to every other method- of taxation, either State, municipal or local. In the levy of taxes for the sup-stated period, and notice is1 given to all concerned of the port of the municipality of Louisville, the assessment is made by the assessor. The board of equalization meets- at a
The objection that the review of the assessment made by the commissioners is not a judicial procedure, and could not, therefore, be • imposed upon the Jefferson chancery court, is untenable. Reviewing the legality and validity of the actions of parties in all matters, public and private, is
But if we were less certain of the constitutionality of the act under review, the case must be affirmed against appellant on this point for the reason that he or his grantors procured the legislation in question, and were the recipients of its benefits. It is alleged in the pleadings of appellee that appellant and his grantors procured; the* charter and its amendments, and obtained the* appointing of the commissioners and the levy of the assessment, and were its beneficiaries. The appellant was content with denying that he did the things charged in estoppel upon him, and his grantors, leaving undenied the whole charge as* against his grantors. The legislation and the acts thereunder, constituting the basis of appellee’s claim herein were obtained and done in 18SS and prior thereto. The work was done and the benefits accrued then and shortly thereafter. The lien was fixed and became a public record, of which appellant had notice when he subsequently purchased. He can not now successfully claim that his land was1 not bound in the matter in question by the action of those who owned it at the time. He took the land with its burdens, and he is bound by the estoppel of his grantors. That one who procures unconstitutional legislation, and receives its benefits, is es-topped to deny its validity, is well settled in thisi State. Cypress Pond Draining Co. v. Hooper, 2 Metc., 350; Scuffletown Fence Co. v. McAllister, 12 Bush, 315; Ferguson v.
The Constitution of 1891 did not repeal the charter of appellee, nor did it expire under the schedule of that instrument by the lapse of five years after 1891. All the acts and proceedings had Avith reference to appellee’s1 claims1 Avere performed under the Constitution of 1850, and Avere not affected by that of 1891.
The evidence in this case, Avithout contradiction, shows that the land of appellant has been vastly benefitted by the tax Avhich he seeks to escape. Before drainage, it Avas worth from $2 to $5 an acre, and after drainage from $40 to $59 an acre. Before, no crop could be- successfully raised upon it; aftemvards, its productivity Avas so greatly magnified as to produce from 60 to 80 bushels of com per acre, and to* yield crops of hay worth from $25 to $35 an acre. But the public has been benefited in a still greater degree, although it can not be expressed in terms of money. Before drainage, the district was uninhabitable because of the prevalence of malaria; uoav, the health of the entire district is as good as that of any other in the State. Before, the health of the city of Louisville Avas seriously impaired by malaria disseminated from SAvamps and morasses which are uoav fruitful fields, and it is said, upon high medical authority, that the work of appellee has done more for the health of the municipality than its whole sewerage system, costing millions of dollars.
For these reasons, the judgment of the chancellor is affirmed.
Petition for rehearing by appellant overruled.