Nevin v. Roach

| Ky. Ct. App. | Nov 3, 1887

CHIEF JUSTICE PRYOR

delivered the opinion of the court.

These two cases were heard together in the court below, and as nearly all the questions raised in the one case apply to the other, they have been argued and will be considered as one case in this court.

The question made as to benefits to be derived from the local improvement in order to impose the burden, has been raised, if not directly decided, in many of the reported cases, and while it has often been shown, and particularly in this case, that no pecuniary gain by an increased value of the property is apparent by reason of such improvements, it is manifest that such improvements conduce to the rapid and prosperous growth of cities, and-result in increasing the value of real estate as such improvements are extended. All such assessments are made upon the idea that the property subject to such assessments is benefited by reason of the charge upon it; but to require the city or the contractor in every case to show the immediate advantages resulting to the owner from the construction and improvement of streets in the way of pecuniary benefit, would be to prohibit in effect such improvements by means of local burdens. As said by the special chancellor below, the land may be benefited in many ways not easily determined upon the basis of money value. Such improvements make the land more desirable to purchasers, and creates conveniences that the owner would not otherwise have; and while corner lots and the land bordering on the street are necessarily increased in value, it must also affect the value of contiguous property within the square, although, at the time the improvement is made, the increased value may be difficult to ascertain. Corner lots are, therefore, taxed higher by the provisions of the city charter than the lots less advantageously located, the object being to make the burden as equal and uniform as practicable.

This method of assessment has been so long followed by the city government and approved by this court that it no longer remains an open question, and the same may be said of the question of notice to tbe taxpayer that he may appear and show why be should not pay bis proportion of tbe cost of tbe improvement.

Tbe inquiry was made in tbe conrt below as to the character of tbe burdens imposed, and where tbe exactions are illegal tbe tax-payer can be beard and tbe assessments of tbe municipal government supervised when it has transcended its power, or has imposed burdens that are so oppressive as to amount to a confiscation of bis property. He then has bis day in court. Tbe city government must judge of tbe necessity for tbe improvement, and is not required to consult tbe wishes of those who are to be taxed to pay for its construction. Notice was given of tbe time and place for receiving tbe work, or for a bearing by tbe parties interested, and if none bad been given, tbe appellants are now objecting to tbe validity of tbe assessment, etc. “In all such cases,” says Mr. Justice Field, in Hagar v. Reclamation District, “all tbe opportunity is given to the tax-payer to be beard respecting tbe assessment, which can be deemed essential to render the proceedings due process of law.” 111 U. S., 707; see also Preston v. Roberts, 12 Bush, 570" court="Ky. Ct. App." date_filed="1877-01-31" href="https://app.midpage.ai/document/preston-v-roberts-7379430?utm_source=webapp" opinion_id="7379430">12 Bush, 570.

In tbe case of Thomas Watson and others, one of tbe cases being considered, tbe improvement consisted in tbe construction of a carriage-way on Chestnut street to tbe east line of Twenty-sixth street, to be thirty-six feet in width, and improved by grading, curbing and paving with macadam pavement, with corner-stones at the intersections of streets and alleys, block stone gutters and footway crossings, etc., in accordance with the provisions of an ordinance approved twenty-first .of August, 1880, entitled general ordinance concerning the improvement of streets. The contract was entered into between the city and Nevin, the contractor, and the work executed in compliance with the contract and the ordinance directing the improvement.

Yarious objections were made in the court below to the manner in which the ordinance was passed, all of which were properly disposed of by the chancellor.

' It was objected that several ordinances for improvements were passed at one time as one ordinance, and, therefore, the charter requiring that an ordinance shall embrace but one subject, and that to be expressed in the title, was, in effect, disregarded. This contention by the appellant is based on the fact that the clerk in making the entries, for the sake of brevity and to save time and space in making the orders, recites that ordinances for the improvement of streets A, B, C and D were passed, etc. There is nothing in such an entry to show that the organic law of the city has been violated ; but, on the contrary, the presumption is, or should be, that the ordinances were voted upon separately, as the charter requires.

The parol proof shows that such was the case, and if incompetent to supply the record, it strengthens the presumption that would be indulged if such testimony was not in the record.

The charter also provides that no ordinance shall be passed until it shall have been read in each board at two several meetings, etc., “unless this provision be suspended by a vote of all the members elect in which the proposed ordinance is pending; nor shall any ordinance embrace but one subject, and that expressed in the title.”

The record shows that a member of the board introduced the following ordinances, which were read once and ordered to be read a second time, etc. The second reading being dispensed with, etc., the same were passed by the following vote. It is argued that the second reading should be dispensed with at a subsequent meeting of the board, or that the record should show at the subsequent meeting that the second reading had been dispensed with.

In Dulany v. Bowman, MS. Opinion, delivered in January, 1875, this question was disposed of: “To dispense with the second reading was to dispense with the reading a second time at a subsequent meeting. Raving dispensed with the one second reading, it was not necessary to recite in the record that such reading at a subsequent meeting had also been dispensed with.”

The apportionment of the burden was reported in this case by the engineer to the city council, and his report adopted. It then became the act of the council, as much so as if the council had made the estimate and directed the apportionment warrants to issue.

Another objection is made to the validity of the ordinance and the proceedings under it, because the ordinance, contract, apportionment, etc., are not all spread in full on the journals of the city legislature. 'These journals show a complete record, with the exception that the entire ordinance, contract, etc., do not appear in full, etc.

It appears that an ordinance for the improvement of Chestnut street to the east line of Twenty-sixth street was introduced — passed by the following vote— then the contract, and who with, and the message from the mayor, etc., asking its approval. Every order appeared showing a compliance with the charter, but the entire contract, ordinance, etc., are not written in full. Nor is this necessary — not more so-than to require every paper that is filed in a court of record to be spread in full upon its record book besides, there is a record book kept by the council, in which the ordinances in full appear. The proceedings are sufficiently certain and authentic, and the case of The City of Louisville v. McKegney, 7 Bush, 651" court="Ky. Ct. App." date_filed="1870-05-12" href="https://app.midpage.ai/document/city-of-louisville-v-mckegney-7379051?utm_source=webapp" opinion_id="7379051">7 Bush, 651, has-no application, as in that case no journal whatever was-kept of the proceeding. Other objections were made as to the grading, etc., that appears upon the maps reported, as well as other questions involving the-authenticity of the proceeding, that were fully considered in the court below, and now approved by this court. In fact, nearly every question raised has heretofore been passed on, and if not, the exhaustive and convincing opinion of the special chancellor should set such questions at rest. Since this improvement has been made, a street has been dedicated and accepted by the city, called Madison street, running parallel with Chestnut and Walnut streets, and dividing the territory as it existed when the ordinance in controversy was passed. It was urged in the court below, and has-been argued here, that when the ordinance was enacted Madison street was, in fact, one of the streets of the city, but we find a decided preponderance of the testimony opposed to this view of the case. The owners had in contemplation the dedication of the street, but it had never been accepted by the city, and, therefore, the case must be considered without regard to snch a street, as it was not in existence when the improvement was ordered and the contract entered into, or when the work was completed. The dimensions of the square between Chestnut and Walnut streets, although larger than the usual squares of the city, and much larger than the square on the south side of Chestnut street, affords no argument against the imposition of the tax. The square might-be of such dimensions as to authorize the conclusion that it was never contemplated that a territory embracing so much land in one square should be deemed a square within the meaning of the law. Such is not the case here. Squares, when considered for the purposes of taxation within the city of Louisville, áre of different shape and dimensions, and if unequal taxation in the one case it must apply to all, and the council and the courts left to determine the dimensions of the square, or the particular location of the property within it, in order to regulate the amount of assessment.

The entire system under which these improvements have for years been made in the city would be subverted, and those in authority with no fixed rule to guide them in imposing such burdens; therefore the necessity for adhering to a rule recognized and established for so long a period, although cases of individual hardship may now and then arise. The judgment as to Watson and wife is affirmed.

In the case of Nevin v. John G. Roach and others, the same questions have been raised, the distinguishing feature between the cases consisting in the failure of the council in the Roach case to locate the way in the street for the improvement. The chancellor below, holding that this was error, dismissed the petition.

The ordinance provided, “that the carriage-way of Broadway, from the centre line of Twenty-sixth street 'to the western boundary line of the city, shall be fifty feet in width, and shall be improved by grading, curbing and paving with the macadam pavements, with corner-stones at the intersection of streets and alleys, Block stone gutters and footway crossings across all intersecting streets and alleys,” etc. The contract being awarded to the appellant, he proceeded to construct and did construct a carriage-way fifty feet in width as provided by the ordinance, under the supervision of and as designated by the city engineer, and when completed the work was received by the city. The chancellor below held that the carriage-way should have been located in the center of Broadway, so as equal spaces should be left on either side of the carriage-way for sidewalks; and as the contractor or engineer had so located the improvement as to leave a space for sidewalks much greater on the one side than the other, with scarcely any space for sidewalks on the one side, that no recovery could be had, and dismissed the petition of the plaintiff. The dismissal was based on the idea that the ordinance should have located the carriage-way, and not left it to the engineer; that to confide such discretion to the engineer was a delegation of legislative power the council could alone exercise. It is made the duty of the city engineer to take the control and supervision of all work executed by the city consistent with the terms of the contract, and in the absence of any statute or law of the city locating the carriage-way in the center of the street, or requiring it to be so located, we perceive no reason why the failure to do so destroys the right of recovery by the contractor against the owners of the adjacent property, by subjecting it to the payment of the contract price. There was nothing in the contract or ordinance by which sidewalks were to be constructed, or any space of ground required to be left upon which to construct them. While it may be proper, and is in fact essential, - that sidewalks should be constructed on each side of the street, as no provision was made for this work in the contract, the owners of the adjacent property as well as the city may have them improved. It is said, and the plat before us so indicates, that the northern boundary line of Broadway is straight continuously from Eighteenth street to the city limits, and that the irregularity is on the southern boundary line from Twenty-sixth street to the city limits, owing doubtless to the location of the lots bordering on that boundary; but whether so or not, we see no cause for complaint on the part of the lot-owner after the work has been completed and received by the council, for no other reason than the failure to locate the carriage-way in such a portion of the street as would prove the most advantageous to the adjoining property.

In the case of Vollman v. Meyer, MS. Opinion, January term, 1880, this court said: “ There is no law prescribing any particular plan for the laying out or improvement of streets, or requiring that they should be of uniform width, or that all parts of the same street should be of the same width; nor does the law require that there should be sidewalks on each side or on either side.”

That opinion was based on the provisions of the act of fourteenth of April, 1874, which is a general ordinance concerning the improvement of streets, and since that time we have been referred to no general or special ordinance fixing the location of a carriage-way upon any of the streets of the city.

In the case of Hydes & Goose, Assignees, v. Joyes, 4 Bush, 464" court="Ky. Ct. App." date_filed="1868-01-23" href="https://app.midpage.ai/document/hydes-v-joyes-7378667?utm_source=webapp" opinion_id="7378667">4 Bush, 464, a discretion was left to the engineer to determine what improvements should be made, and after the engineer had directed the improvement,- the work was to be done subject to his control and supervision, tío in this case, if the city council had conferred upon the engineer the right to determine whether this carriage-way should or not be constructed, it would, as in Hydes & Goose v. Joyes, have been delegating to him legislative power; but we find that the council has ordered the carriage-way to be made fifty feet in width from Twenty-sixth street to the western limits of the city. The engineer whose duty it was to supervise and control the work entered upon the street with the contractor and made the improvement as directed by the city legislature. The way was constructed in a public street, and while one who is compelled to contribute to pay for the improvement may assail the irregularity of the proceeding, if the ordinance and the proceedings under it are valid, the objection merely that the street is too near the adjacent property on the one side, and too far from the adjacent property on the opposite side, is unavailing. Such complaint should have been made to the engineer or council before the work was ■completed, and the chancellor will not withhold the remedy afforded the contractor for any such reason.

If the owner of the adjacent property is entitled as a matter of right to have a certain space assigned him for making a sidewalk, it would present a different question; but whether such sidewalks shall be constructed is a matter with the local legislature and not a right that the citizen can assert upon the construction of a carriage-way or other street improvement. It is true, the owner of a lot bordering on a street may have :an easement in it, as well as peculiar privileges that do not belong to the public generally. They are certainly more interested in the street fronting their property than a stranger ; but having no right to a sidewalk in connection with the improvement made in the street, :and with no prohibition of the right to have one constructed by the consent of the local authorities, we see no reason why they should interpose an objection to "the location of a way in the street, after the improvement has been made and accepted, because the location of the way renders the construction of a sidewalk more ■difficult, or requires a larger expenditure for its construction, than it would have cost if the carriage-way had been in the center of the street.

The judgment in the case of Nevin, &c., v. Roach and others, is, therefore, reversed, with directions to enforce the lien and for proceedings consistent with this opinion.