| Ky. Ct. App. | May 5, 1903
Opinion op the court by
Reversing.
This appeal is prosecuted from a judgment enforcing a lien asserted by appellee, assignee of the contractor, on the lots of land belonging to appellants for the improvement by original construction of a part of Adams street, Louisville, from a line 228 feet northwestwardly of Maiden-Lane for a distance of 200 feet. The territory contiguous to the improvement sought to be taxed upon each side of Adams street is not defined into squares or principal streets, or bounded by principal streets, and therefore the general council, in the ordinance providing for the improvement, designated the depth upon which the assessment should be laid on each side of the way as improved to pay the cost thereof. The improvement began some 55 feet from Quincy street, the nearest intersecting street. A lot of land owned by Elizabeth Hartell, but which does not extend to the full depth fixed by the general council for the territory bearing the burden of the improvement, lay parallel with the street, but between that lot and the furthermost line of the improvement area would be included parts of the three lots of appellants. As a matter of fact the territory designated to bear the cost of this improvement extended across the lots of appellants, but did not include the whole of any of their lots. The apportionment warrants issued upon this improvement were more in every
The following plat will make plain the situation of the lots and the street improvement sought to be charged thereon:
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The appellants are Margaret Pfaffinger, Margaretha Koch, and Ludwig E. Beck. The amqjint of the apportion
Appellants present three principal grounds upon which a reversal is sought. In the first place, they contend that, inasmuch as none of their lots fronted upon Adams street, they were not liable to assessment for the improvement of that thoroughfare. But we are of opinion that it is not a question under the statute whether the lot required to bear some part of the street improvement assessment actually fronts or abuts upon the street, or the part thereof so improved. Taxes must be uniform, as far as may be practicable; but absolute equality is unattainable. The most practical application of the doctrine of uniformity in such cases as this is to provide a certain district, which in fact or in every probability is, or from its situation is conclusively deemed to be, benefited by such improvement, upon every part of which an apportionment tax may be laid ratably and equally. Where the public way to be improved is abutted by property defined into squares by. principal streets, or the property to be assessed is bounded by principal streets, then the quarter sections of the square contiguous to the property improved is deemed to be the proper territory to bear the cost of the improvement. Or, if the territory is not laid off into squares or principal streets, then the council must, in the ordinance providing an improvement, select and define the territory contiguous thereto which should bear the cost of that improvement. Section 2833, Ky. St., 1899. Therefore the front-foot theory has
The second proposition is that, inasmuch as the apportionment warrant issued against each of appellants is more in every instance' than the property owned by any one of them within the apportionment district, therefore it amounts to spoliation, as defined by this court in numerous decisions: Broadway v. McAtee, 8 Bush, 519" court="Ky. Ct. App." date_filed="1871-01-13" href="https://app.midpage.ai/document/sullivan-v-norris-7130823?utm_source=webapp" opinion_id="7130823">8 Bush, 519, 8 Am. Rep., 480; Preston v. Rudd, 81 Ky., 156, 7 R., 806; James v. Louisville, 19 R., 447, 40 S. W., 912; Louisville v. Lou. Rolling Mills, 3 Bush, 416" court="Ky. Ct. App." date_filed="1867-05-28" href="https://app.midpage.ai/document/city-of-louisville-v-louisville-rolling-mill-co-7130531?utm_source=webapp" opinion_id="7130531">3 Bush, 416, 96 Am. Dec., 243.
For appellee it is argued that the test is not whether the value of the property within the apportionment district is less than the cost of the improvement apportioned against it, but whether such proportionate cost of improvement is as much or more than the value of the whole lot of which the part sought to be subjected to the tax is a parcel. We’can not agree with this reasoning. The thing taxed is the designated district, and that alone; not its owners. Nor is it considered in connection with other property held by the same owners. This must be so, because the true theory underlying this method of taxation is that the territory selected and made to -bear the tax is the only one presumably directly benefited thereby. Else, to hold that other territory is also directly and equally benefited, but not taxed at all for that improvement, is to impose a tax upon one man’s property for the benefit of another’s of the same kind and class, which is not taxed at all. This would destroy that uniformity and equality which in theory, and practically in fact, run through and support this whole doctrine. Besides, it would otherwise be unjust. For ex
The remaining question is close akin to the one just decided; that is, could the court properly apply any part of appellants’ properties outside of the improvement district to the payment of the tax? We do not understand that his honor, the learned judge who tried this case, really meant to hold that they could be. What the judgment undertook to provide was a sale of an indivisible piece of property as a whole in a proceeding against the owner to enforce a lien against a part of it. The circuit court correctly decided that the whole lot should be sold (provided the tax was a valid one); but the proceeds of the sale
The judgments are reversed, and cause remanded, with directions to dismiss the petition so far as it seeks a recovery against appellants.