City of Covington v. Worthington

10 S.W. 790, 88 Ky. 206, 1889 Ky. LEXIS 22

Opinions

JUDGE PRYOR

delivered the opinion or the court.

This case is brought here to determine the validity of an act of the Legislature amending the charter of the city of Covington, approved March 5, 1876, and also the validity of an ordinance passed in pursuance of its provisions.

The city council, by a regular proceeding in the mayor’s court, condemned certain lots or parcels of lots in the city for the purpose of extending Stewart street from its present western terminus to Russell street. The regularity of the condemnation proceedings are not involved, and we must infer were such as the law authorized; and if not, the parties whose property has been condemned may appeal to the cir•cuit court, and from that to this court as in other cases. t

The appellees were the owners of the ground, or a part of it, taken by the city for the purpose contemplated, and owned land bordering on the improvement; in fact, the appropriation of a part of these lots left the balance bordering on the street.

The appellees instituted this action, enjoining the •city and the tax collector from collecting any tax from them to pay for this improvement, and the •chancellor, upon the facts alleged in the petition, perpetuated an injunction as to the tax, but held the pro eeedings valid in so far as the city sought to extend the street. The city appeals from the judgment perpetuating the injunction as to the collection of the-tax, and the appellees prosecute a cross-appeal from that part of the judgment holding that the street was properly taken for the public use.

The ground upon which the chancellor sustained the injunction was, that the land of the appellees had been taken for public use without constitutional compensation.

It was alleged in the petition by the appellees that the special tax levied on the realty belonging to them and bordering on the street, was equal or amounted to more than the value of their realty taken for the street, and, therefore, their property had been taken without any compensation whatever. That the tax imposed is ■equal to, and as to one or two of the appellees exceeds, the value of the property taken, is conceded. The act of March 6, 1876, is as follows:

“Whenever the. said city shall have acquired, by purchase or condemnation, any land or material for the opening, extending or widening of any street, etc., or part thereof within said city, its city council shall have the power to assess a special tax upon the lot or lots or parcels of land fronting or abutting on the said street, * * according to the front feet, for such distance along the same, not less than a square’s length if the square is laid out, or not less t^an four hundred feet if there is no square, as they- shall provide in their resolutions directing the purchase or condemnation, or they may assess according to valuation at the same on the city assessor’s last book of assess ments, or they may assess any property benefited' according to benefits. Said tax to be used to pay the-cost and expense of such purchase or condemnation, or to reimburse the city treasury if said cost and expenses shall have been previously paid therefrom, *" and the proceedings of condemnation shall be regulated by the provisions of section 4, article 6 of the-act of March 2, 1850.”

Counsel for the appellee in this case insists that the exaction of this tax on the value of the property abutting on the street, as provided by the enactment of March, 1876, is substituting for compensation to the-owners of the property taken, the benefits derived instead of money equivalent, as required by the Constitution. This view of the question presented arises from the fact that all taxation imposed in cases like this is based upon an actual or supposed local benefit, and, therefore, as a part of appellees’ lots have been taken, the remaining realty out of which the street has-been carved is taxed solely on account of the local benefits derived, and that when they pay this tax there is nothing left in the way of compensation but the enhanced value of their adjoining property or the peculiar benefits resulting from the improvement.

It is manifest that nothing can, under our Constitution, be deducted from the value of the property taken by way of condemnation. Neither the State, county or municipality can assert benefits or advantages to the citizen as a recompense for the appropriation of his property to the use of the public. He is entitled to its valúe in money, to be paid before entry. Recognizing this principle as the settled doctrine of this State, it is proper to inquire whether or not the appellees in this case have been required to contribute more to the opening or extension of the street in question than their share of the public burden in the construction of such improvements. If those owning real estate within the city of Covington are liable to similar taxation for the-purpose of opening, extending or improving streets, the taxation then being equal, is not open to constitutional objection. The fact that the appellees owned the land condemned, and are left with lots bordering on the extension, is no argument against the imposition of the burden. If the land taken had belonged to a stranger to this controversy, and purchased or condemned by the city for the street extension, the lots bordering upon it belonging to the appellees would be liable to taxation for its improvement. The law applicable to the entire municipality provides that such improvements shall be made by a special tax upon the lots bordering on the improvement according to the number of front feet, & c. It is universal in its application, and produces that equality recognized and settled as constitutional in the case of the City of Lexington v. McQuillan’s heirs, 9 Dana, 513. The section of the charter of the city of Lexington was similar in almost every respect to the section we are considering, and the court then held the taxation was constitutional. Nearly all the legislation in this State with reference to such improvements has been based on that decision, and the courts of this and other States have recognized it as the leading case on the subject. There is one feature of the section of appellant’s charter that was disapproved in the case cited. The city council is authorized to assess any property benefited according to benefits, and, therefore, oonld impose a much greater burden upon the one lot owner than the other, and, as in the case of McQuillan’s heirs, make one lot owner pay more than another, because of the great expense incurred in improving the street in front of the particular lot. This was condemned in the McQuillan case, and each lot owner required to contribute his due proportion of the cost according to the extent of his ground on the street. The special tax in this case makes each lot owner pay in proportion to the number of feet fronting the street, and this was proper. The tax imposed is neither arbitrary or unreasonable. If appellees had not owned the ground taken, their part of the cost would have been the same. They are not taxed to pay for the ground appropriated, but to pay the cost of extension. It inevitably follows that in this distribution of the burden the tax collected from the appellees aids in paying for the property condemned; and so of every street or public highway that has been condemned' as such for public use. If a county road is established, and the land of A is condemned for that purpose, A is compelled, in discharging his part of the county levy, to assume and pay his proportion of the value of his own land. The expense is charged to the entire county, and in this way all contribute, including the citizen whose land has been condemned. As to cities, as is usual in this State, each square improves its streets by taxing the property by the front foot to pay for the improvement. This is held to produce equality, and the fact that the party sought to be taxed was the owner of the land condemned can make no difference. If no tax can be imposed in such a case, then you extend the improvement, and release Mm from all costs, when charging others for like improvements who happen to own the land adjoining, but not the land condemned.

In the case of Sutton’s heirs v. City of Louisville, 5 Dana, 28, the jury, in determining the value of the land for the street, was authorized to set off the advantages and benefits to the owner by reason of the improvement against the value of the land, and it was held unconstitutional. In this case the appellees have been given the value of their land without reference to the advantages to be derived from the street extension, and have been taxed as all other owners of real estate situate in the city are taxed. The tax may exceed the value of the land taken, and is imposed because of local benefits derived, but producing that equality in the common burden for like improvements it is constitutional taxation.

In the case of City of Lexington v. McQuillan’s heirs, 9 Dana, 513, it is said “that whenever the property of the citizen is taken from him by the sovereign law, and appropriated without his consent to the benefit of the public, an exaction should not be considered as a tax, unless similar contribution be made by that public itself, or shall be exacted rather by the same public law from such constituent members of the same community generally as own the same kind of property.” Where the same kind of property is subjected alike to the same common burden, the taxation, if otherwise unobjectionable, has always been sustained. >

We are unable to determine from the pleadings in this case (there being nothing but the petition) whether the moneyed value of the land condemned has been paid to the appellees or not, or whether the city has entered upon the premises condemned for the purpose of making the improvement. We infer from the petition that the appellees are assailing both the ordinance and charter of the appellant, and that no entry has been made or money paid, but an injunction obtained with a view of delaying all proceedings until the constitutional question raised is determined. It is plain that the city should pay or offer, to pay the appellees the money value of their land as fixed by the verdict and judgment before entering on the premises.

This is a condition precedent to the right of entry, and when paid, the assessment may be made as provided by the charter. While the assessment may equal the value of the property taken, it affords no reason for applying the doctrine of set off in a case like this. The owner must be paid his money, and then required to pay his part of the common burden.

The judgment below is reversed on the original, and affirmed on the cross-appeal, and remanded for proceedings consistent with this opinion.