Graham v. Conger

CHIEF JUSTICE PRYOR delivered the opinion of the court- By an act of the Legislature, approved the twenty-first of April, in the year 1882, on the petition, as is; alleged, of a large majority of persons owning property on either side of the Ferry Fountain road, in the county of J efferson, a tax was imposed on the owners-of the land lying between two lines parallel to the-center of the road, and distant on each side eight hundred feet, for the purpose of improving and macadamizing the road (that was then an ordinary county road)from the western boundary of the city of Louisville, extending to the bank of the Ohio river. The commissioners under the act-, authorized by its provisions, to contract for the construction of the improvement, gave the contract to the appellee Conger, who completed the work in accordance with his contract, and is now seeking to enforce his lien on the land bordering on the road, and owned by these appellants. The. — 585 — entire improvement, including compensation to the-engineer and other expenses, amounted to about the sum of twenty thousand dollars. The appellants filed an answer, presenting several defenses to the action, only one of which will be determined in this case, viz.: The validity of the act under which this work was done. It is insisted by counsel for the appellant that the act is unconstitutional for two reasons. 1. The title of the act is misleading. 2. That the taxation imposed is unequal, and the property of the appellants proposed to be taken for public use without compensation. A demurrer was sustained to the answer filed, and. the facts therein alleged, connected with the act of' the Legislature under which this lien is sought to be enforced, presents the . constitutional question. The-apportionment of the cost of the work was proper, and a lien exists by the provisions of the enactment, if the demurrer was properly overruled. It is alleged in the petition that the road improved, was, at the time of the passing of the act, one of the-ordinary county roads of Jefferson county, under the supervision of the county authorities, worked and kept in order at the usual expense attending the improving of county roads, and the expenses paid out of the county levy. That the cost to each land-owner was only a few cents to the acre for such improvements as were required to keep the road in repair, and paid out of the annual levy. That the tax imposed for the extraordinary improvement made amounts to fifty dollars an acre on the land lying within the taxed boundary, or one dollar per foot fronting the road on either — 586 — •side. T1ia.fi these appellants were not instrumental in obtaining the passage of the law or benefited by the improvement. That there is no general system of taxation for turnpike purposes within the county, and, therefore, the Legislature exceeded its authority in requiring these appellants to pay for this public road or its improvement, that belongs to the county or under its control, and from which they derive no income, and no greater benefits than must necessarily be attached to farming lands bordering on a public highway. The land sought to be taxed is agricultural land, and its annual rental about four dollars per acre. By section 5 of the act, it is made the duty of the -Jefferson county court “to cause to be ascertained the names of the owners of each and every square foot of land within the tax district described in the first section of the act, and to assess the entire cost ■of said improvement of said road, including the compensation to the engineer, etc., equally upon each square foot of land within said district, and a lien shall exist for the same on said property,” etc. By the seventh section it is provided, “that after the Fountain Ferry Road is improved as herein provided, it shall be a public road, and shall be thereafter kept in repair by Jefferson county as such.” The act is entitled “An act providing for the improvement of the Fountain Ferry Road (describing it), •at the cost of the property benefited thereby.” We perceive no objection to the title. Such is the purpose ■of the enactment, and the body of the act following the title authorizes the improvement made at the cost — 587 — ■of the owners of the land bordering on the road. There is nothing foreign to the title, and the Legislature has declared, by the passage of the law, that the improvement is beneficial to the owners. That the improvement is beneficial there is but little room for doubt, and whether or not benefits are equal in all cases to the burden imposed is not a material inquiry. The constitutional requirement in reference to uniformity and equality in taxation, and that prevents such a discrimination as imposes the burden on a few for the benefit of all, seems not to have been regarded in the legislation upon the subject-matter involved in this case. While districts may be created and taxation imposed according to the value of the property within the particular district for the construction of turnpikes and other improvements, upon the idea of benefits derived, we are aware of no rule or principle of taxation that would authorize the taxation of agricultural lands by the square foot, or of compelling those who own land bordering on an ordinary county road to incur the entire expense of keeping the road in repair; and certainly no system exists by which such extraordinary expenditures can be made, as in this case, imposing a burden of fifty dollars an acre on agricultural land for the construction of an improvement for no other reason than that the land borders upon the improvement made. The road is devoted to the public use. It is a county road in which the entire public is interested, and where the owners of the adjacent land, although not touching the road, are equally benefited with those living — 588 — directly upon it. The few living adjacent to the improvement have been selected to discharge a burden that should be assumed by all, or at least by those who-are benefited by it. It is a local tax for a county purpose, a common burden imposed on a few, that violates every principle of just and uniform taxation, and borders on spoliation. If the owners of land bordering on this particular-road can be compelled to improve it by converting the-dirt road into a turnpike, then the owners of land bordering on every other road in the county may be-required to make a like improvement, and by this-means five-sixths, or a greater proportion, of the taxpayers of the county directly interested in such improvements, released from taxation, and the entire burden placed upon those who happen to live near the improvement made. The burden may be apportioned according to the benefits received, whether it be a county or district tax; but such an unjust discrimination as has been made in this case, and that, would exist if a like system had been adopted for titeen tire county, is in direct violation of the Constitution, and an appropriation of the property of the citizen for public use without just compensation. Local taxation is often proper, because of the local benefits-received; and the law-making power can ascertain those who, from the benefits derived, should be made the subject of taxation with an approximate certainty, and in this manner produce as near as is practicable uniformity and equality in the discharge of the burden ; but to say that a few persons living on the road shall pay twenty thousand dollars for improving it,, — 589 — and then have no other interest in it than his neighbor who rides over it and uses it, is so obviously unjust as to require only the statement to show that it is in plain disregard of the rights of these appellants. It may be called a taxing district, but this imparts no ■efficacy to such legislation where the district, when ■created, shows that the burden is imposed on a few for the benefit of all. In this consists the wrong done these appellants, and entitles them to the relief sought. We do not mean to adjudge that turnpike districts may not be created in a county, and those within the ■district taxed to construct them, but in imposing the burden, the district should include and the burden be imposed on those who are directly benefited by it, or who, by reason of their proximity to the road, would practically derive the benefits. The mode of assessments and taxation for street improvements can not be applied to the improvement •of highways in the country. The cost of the improvement of streets and sidewalks in cities and towns is usually imposed on the ¡property in each square where the improvement is made — that is, each square is made to improve the street fronting it. This is upon the idea, as said by this court in the case, of City of Lexington v. McQuillan’s Heirs, 9 Dana, 513, that all the streets and sidewalks may be expected to be improved at some time in a similar manner, and each square being liable for the cost incident to the improvement upon which it borders, it approximates uniformity and equality as between the owners of the property, and this is indispensable in imposing such taxation. All the property within the square — 590 — will, in this manner, be taxed for like improvements. The improvements may not be made at the same time, bnt the practical result of such a system is to make all the realty responsible for such improvements. Not so with reference to the taxation in this case. If we could assume that the Legislature would require the counties to make turnpikes on all their public roads, as we do with reference to the grading and constructing of streets in cities and towns under the authority of the common council, still the mode adopted in this case is clearly unconstitutional, because it taxes those for the improvements who live or own land on the road, and omit to impose any of the burden on those who derive similar benefits, for no other reason than that their land is not bounded by the improvement. A tax is imposed on a minority for the benefit of the majority, when the improvement is beneficial to all. It is similar to taxing a few feet of the realty on the street in a city fronting the entire square, making it pay for the improvement, and leaving other owners of property within the center of the same square free from any burden. A tax for a public purpose can not be imposed in such a manner, and the system of street improvements, when applied'to highways in the country, is not only impolitic, but a plain departure from that doctrine of equality constituting the basis of all taxation. In our opinion, no lien exists upon this land for the improvement made, if the answer presents the facts of this case, and the demurrer should have been overruled. Those obtaining the grant would, of course, be estopped from denying its validity as against those who have made the improvement under it. Judgment reversed and remanded.