56 Ky. 223 | Ky. Ct. App. | 1856
delivered the opinion of the court:
A portion of the land of F. C. Sharp, viz., about 34 out of about 140 acres, having been included within the extended boundary of the town of Hopkinsville as defined by an act of 1846, brought under the consideration of this court in the case of Cheyney vs. Hoozer, 9 B. Monroe, 330, Sharp refused to pay the tax assessed by the town upon his property included within the extended boundary, and brought this action of replevin against Dunavan, the officer of the town, who had seized his horse as a means of coercing the tax. During the pendency of the suit Sharp died, and the action was revived in the name of his executors. The only question seriously contested in the case, was whether the act of 1846, extending the limits of the town, was, as to Sharp and his land, constitutional; the ultimate question being whether the property of Sharp thus brought into the town, or made a part of it by the extension of the limits, without his consent, was thereby subjected, or could be constitutionally subjected, to taxation by the municipal authorities of the town.
In the case above referred to, (9 B. Monroe, 330,) the court assumed, upon the evidence in that case, that a comparatively dense population, including
In the present case it was proved that the actual population had extended itself, not only on the side on which Sharp’s property was situated, as shown in his case, but that it had extended in a similar manner on one or two other streets, and in fact that there were residences on all sides of the town, to the number of more than twenty, including that of Sharp, some of which were immediately adjacent to the old boundary, and all within, as we understand it, much less than a quarter of a mile from it, and that Sharp’s house was only about twenty-five poles from the old boundary, and not half a mile from the court house, and that it was near enough to enjoy the advantages of schools, churches and business in the town,
We deem it unnecessary to state other more minute facts detailed in the evidence. And if this case is not directly decided in favor of the constitutionality of the act, and of the tax, by the case of Cheyney vs. Hoozer in reference to the same act, we think it comes within the principles on which, according to that case, the legislative power, and the consequent tax, cannot be denied or resisted. There was such an extension of the town in certain quarters as justified legislative action in extending the boundary; subsequent events have also demonstrated that, with respect to the growth of the town, there was utility in the extension, if not a necessity for it. And whether the boundary is just where it ought to be, or where necessity required it to be, is not the subject of judicial enquiry or scrutiny. There may be some inequality, inasmuch as different quantities of land, belonging to different owners, and situated at unequal distances from the centres of business, are brought into the town and subjected to taxation, but there is no such flagrant case as authorizes the conclusion, at first blush, that this taxation is the mere taking of private property for public use. The persons brought into the town had nearly all the advantages of actual citizens. We cannot say that they
The question whether, upon a given state of facts, the legislative act, and the consequent tax, are constitutional, is a purely legal question. And although it depends upon facts which, if controverted, are. in a case like this, to be submitted to a jury, neither the propriety or, in common language, necessity of the extension, nor the motives which produced it, are among the facts which the jury is to decide. They are in truth not facts to be determined by a jury, for this would make the constitutionality of the law to depend on the opinion of the jury as to matters which are at last but matters of opinion, and upon which the legislature has, in passing the act, already expressed its judgment. And that judgment cannot be controlled on the ground of a mere difference of opinion as to the wants or necessities of the town, or upon mere conjecture, or opinion, as to the motives of the extension, but only upon the ground of a flagrant violation of constitutional right, to be demonstrated by the extrinsic facts showing the actual condition of the town with respect to territory, population and locality, and the condition of the added territory with respect to population and in relation to the existing town. These facts, if controverted, are to be found by the jury, but the question of constitutionality arising upon them is a conclusion of law, which, if there be no dispute as to the facts, may be pronounced at once by the court in instructions to the jury.
If this be not so — if the constitutionality of a law of this character is, under the principles of the two cases above referred to, to depend upon what a jury may believe as to the necessity of the extension, or the motives which led to it, we should, while still approving the principles asserted in those cases, greatly doubt the practicability of so applying them as to maintain the just authority of either the legislature or the constitution.
The opinions of the circuit court in giving and refusing instructions, were in accordance with the principles of this opinion, and justified by the evidence.
Wherefore, the judgment for the defendant is affirmed.