142 S.W.2d 161 | Ky. Ct. App. | 1940
Affirming.
The sole question involved in this litigation is the validity of Section 2833a of Baldwin's 1936 Revision of Carroll's Kentucky Statutes. The section was originally enacted in 1902 and is chapter 7, page 23, of the Session Act of that year — being an amendment to the then existing charter of cities of the first class in this Commonwealth. The purpose of the attacked statute is to give legislative consent that in cities of the first class any public real estate owned by the Commonwealth within the corporate limits of the city shall defray its proportionate part of the cost of local improvements which the city is authorized to make, but withholding the granting of a lien in favor of the city against such property. In lieu of giving a lien — which is done with reference to privately owned property for its proportion of *520 the cost of such improvements — provision is made in the statute for the collection of the state's part of the cost of improvement as therein directed. A similar provision was made by the same session of the Legislature amending charters of cities of the third class by chapter 121, page 271, of the Session Acts of that year, and which latter statute is now Section 3449a-1 of Baldwin's Revision of our Statutes, supra. There is no such specific provision in any of the charters for second, fourth, fifth and sixth class cities, for which reason it is contended by appellants and defendants below that the statute supra (Section 2833a) is local and special legislation which is forbidden by Sections 59 and 60 of our Constitution. The city of Louisville ordered — in pursuing its authority under its charter — the improvement of Fordson Way, abutting upon which, or within the permissible zone within which improvement cost may be collected, is the state's property known as the State Fair Grounds. Its portion of the assessment — if it may be assessed at all under the statute supra — was and is $1,243.65 which was due to the plaintiff and appellant Henry Bickel Company, the successful contractor for the improvement. The Commonwealth declined to pay and this declaratory judgment action was filed in the Franklin Circuit Court against the proper state officers to compel payment in accordance with the attacked statute. The learned trial judge upheld its validity and directed defendants to make payment in accordance with its provisions, from which they prosecute this appeal, thereby presenting to this court for determination the sole question supra.
There was presented to this court in the case of Hager, Auditor v. Gast,
In the prior case of Richardson v. Mehler,
All text writers as well as courts — and which is not disputed by anyone in this case — agree that special assessments *522
for improvements of the nature here involved are not taxes within the sense of constitutional or statutory provisions (Section 170 of our Constitution) creating exemption from taxation of public property, and which principle was announced and approved by this court in the case of City of Mt. Sterling v. Montgomery County,
In the case of Droege, Circuit Clerk, v. McInerney, Sheriff,
By an examination of the cases cited under Sections 59 and 60 of our Constitution by the compilers of our statute many cases will be found upholding provisions in charters of different class cities which are sometimes directly antagonistic to provisions relating to the same subject in other charters. Also it will be found that authority for the conduct of the local government is given to one class of cities and entirely withheld as to another class; while in each type of differentiation a general law might have applied. Nevertheless such differentiations were sustained because Section 156 of our Constitution as stated by Judge Du Relle in the Richardson case, supra, created an exception to Section 59 of our Constitution by conferring upon the Legislature the right and the authority to enact different charters for each class of cities and to confer different governmental functions and powers upon each class, as well as the means and methods by which such rights might be exercised.
Under the facts presented we have this case: The city of Louisville is given authority to improve its *524 streets with the right to collect the cost entailed thereby from abutting property or property within permissible zones. The Commonwealth has said by the act — the validity of which is contested in this case — that the state's property from which such collection might be made if privately owned, should pay its proportion of the improvement cost. Such consent, we conclude, amounts to no more than as affecting the remedy by which the cost of such improvements might be realized, thereby presenting a question solely of local government of the class of city to which the statute is made applicable. We therefore conclude that for the reasons indicated our opinion in the case of Hager, Auditor, v. Gast, supra, was and is sound and should not be disturbed.
If, however, we were differently inclined, we would then be confronted with the situation that according to all of the recognized text writers and opinions of courts, we take judicial notice of the local surroundings and situations of municipalities to which acts of the nature of the one here involved are made applicable for the purpose of determining their constitutionality as invading constitutional provisions against local or special legislation. If we should do that in this case we would find that in the city of Louisville, one of the first class, and in the city of Frankfort, one of the third class, is located practically all of the state's property in the Commonwealth, except the State University in the city of Lexington. All other public property is located in rural territory or outside of municipality limits, and it might be held as correct to say that the Legislature was authorized, because of the fact so ascertained by such judicial knowledge, to permit the two classes of cities referred to to make assessments against state property for internal improvements because of the amount of territory or area of real estate owned by the state within the limits of cities of those respective classes. But whether we would be so authorized or not, we are confident that the reasons advanced supra together with our former opinion in the Hager case are sufficient to authorize a continued adherence to that case, and for which reason the judgment is affirmed.
The whole court sitting except Judge Rees who is absent. *525