Walston v. Nevin

delivered the opinion, of the court.

Judgment was rendered in the Louisville Chancery Court in favor of the defendants in error in the first of the above-named causes, directing the enforcement of a lien given by a statute of the Commonwealth of Kentucky, approved March 24, 1882, entitled “ An act to amend the charter of the city of Louisville,” by a sale of certain lots in the city of Louisville owned by plaintiffs in error, to pay the amounts assessed against such lots for a local improvement, and, upon appeal, was affirmed by the Court of Appeals of Kentucky.

In the second case, which arose upon another local improvement, but involves the same questions here, the Louisville Chancery Court denied the defendants in error relief because in its opinion the proceedings for the improvement had hot been properly taken; but the Court of Appeals reversed the judgment of the Chancellor and remanded the cause “with directions to enforce the lien and for proceedings consistent with the opinion herein, which is ordered to be certified to said court.”

Writs of error were thereupon prosecuted to this court, to dismiss which motions are now made, united with motions to affirm under the rule.

A preliminary objection is .raised that defendants in error should have caused the entire record to be printed. But we only require the printing of so much of the record as will' enable us to act understandingly without referring to the transcript ; and if, in the judgment of counsel opposing the motions, more in that respect was needed, he might have made such specific reference thereto as would have enabled counsel for the moving parties to have supplied it. As the cases stand, we have apparently been furnished with quite enough for the disposition of the questions involved. The parts of the statute necessary to be considered upon these motions are as follows :

“ § 1. Public ways as used in this act shall mean all public streets, alleys, side-walks, roads, lanes, avenues, highways, and thoroughfares, and shall be under the exclusive manage

“§2. "When the improvement is. the original construction of any street, road, lane, alley, or avenue, such improvement shall be made at the exclusive costs of the owners of lots in each fourth of a square, to be equally apportioned by the general council according to the number of square feet owned by them respectively, except that corner lots (say thirty feet front and extending back as may be prescribed by ordinance) shall pay twenty-five per cent more than others for such'ini-.' provements. Each subdivision of territory bounded on all sides by principal streets shall be deemed a square. When-the territory contiguous to any public way is not defined into squares by principal streets, the ordinance providing fbr the improvement of such public way shall state the depth on both sides fronting said improvement to be assessed for the cost of making the same according, to the number of square feet owned by the parties respectively within the depth as set out in the ordinance. A lien shall exist for the cost of original improvement of public ways, ... for the apportionment' and interest thereon, at the rate of six per cent per annum against the respective lots and payments may be enforced upon the property bound therefor by proceedings in court; and no error in the proceedings of the general council shall exempt from payment after the work has been done as required by either the ordinance or contract; but the general council, or the courts in which suits may be pending, shall make all corrections, rules, and orders to do justice to all parties concerned. . . .”

“ § 4. . . . "When improvements in public ways have been made, . . . and the contract therefor completed, the city engineer shall, by one insertion.in one of the daily newspapers published in Louisville, give notice of the time and

In accordance with the provisions of this act the local improvements in question were made, and warrants issued for the sums apportioned against each of the lots belonging to plaintiffs in error as their share of the cost, to Joseph Nevin, the contractor, one of the defendants in error, who assigned them to Samuel B. Richardson, the other, and they brought the actions.

The plaintiffs in error set up in their pleadings, and, insisted in the trial court, that the act of the General Assembly, so far . as it authorized, the cost of the improvements of streets and other ways to be assessed against the owners of lots and gave a lien thereon, in the manner therein provided, and all the proceedings thereunder, were in conflict with section one ' of the Fourteenth Amendment to the Constitution of the •United States, as amounting to a deprivation of property' without due process of law and a denial of the equal protection of the laws.

- The statute has been repeatedly before the Kentucky Court of Appeals, which has sustained it as constitutional and proper legislation, the powérs vested thereby in the local government being subjected to the supervision of the courts, “ where the particular facts in each case can be examined, and the controversy determined by those rules and principles which have always governed courts in dealing with questions of assessment and taxation.” Preston v. Roberts, 12 Bush, 570 , 587; Beck v. Obst, 12 Bush, 268 ; Broadway Baptist Church v. McAtee, 8 Bush, 508 , 516. Unjust, unequal, or arbitrary burdens are not authorized -to be imposed by the terms of the act, and opportunity is given to every party interested to be heard in' opposition to the enforcement of the liability in the courts, which are specifically authorized to “make all corrections, rules, and orders to do justice to all narties concerned.”

As the question raised in' these cases is a Federal question (Spencer v. Merchant, supra), we will not sustain the motions to dismiss; but as there was,, in our judgment, color for those-motions, and the contention now made has often been pressed upon our attention before, and’ as often determined adversely, so that the rule must be regarded as settled, we shall grant the motions to affirm.

Affirmed.