Cooper v. Nevin

JUDGE PRYOR delivered the opinion oe the court. The ordinance in question was passed in accordance with the provisions of the city charter, and the only trouble arises from the manner in which the burden — 88 — of payment was imposed on the property bordering on the improvement. Each subdivision of territory, bounded on all sides by principal streets, is ordinarily .deemed a square, and such is the provision of the city charter; still the territory between the streets may be of such dimensions, covering a large area, as would show not only the necessity but • the certainty that such an area must at some time be subdivided into squares for public convenience, and, therefore, the city council, in ordering the improvement, .will only extend the taxing district as far into the territory that is liable to this subdivision as that taxed on the-opposite side of the improvement, where the territory has" already been defined by squares surrounded by principal streets as contemplated by the charter. The charter provides that “when the territory contiguous to any public way is not defined into squares by principal streets, the ordinance providing for the improvement of such public way shall state the depths 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.” The improvement in this case was the construction-of a carriage way on Bank street thirty-six feet in width, from the centre of Twenty-fourth street to the east line of Twenty-sixth street. The work was completed by the appellee and accepted by the city. The court below gave a judgment against the appellant for his proportion of the cost of the entire improvement, ascertaining the contract price, and making each property-holder pay to the extent of the-property owned that bordered on the improvement. This was error, if the appellant is right in his contention that the property taxed was included within squares as defined by the charter, and not susceptible of subdivision. Bank street is bounded on the89 north by Portland avenue; on the south by St. Xavier street; on the west by Twenty-fourth street, and on the east by Twenty-sixth street. Twenty-fifth street divides the territory between Twenty-fourth and Twenty-sixth, making two well-defined squares; and for a better illustration of the location of the property a diagram of the territory is hereto appended: — 90 — It will be seen from this map that the territory between Bank street and Portland avenue, extending from Twenty-sixth street to Twenty-first street, embraces thirty-two acres of land, and this area being surrounded by principal streets, but not subdivided, the question presented is, does the charter in such a case determine the territory to be taxed and the mode of assessment after the passage of a valid ordinance ordering the improvement, or is the entire question left to the city council? When not defined into squares by principal streets, the charter requires that the ordinance providing for the improvement “shall state the depths 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.” The city council, regarding the territory north of Bank street, and between that street and Portland avenue, as not being within a square, fixed the depth ■on each side of the improvement to be assessed at a distance of two hundred and ten feet, thus taxing the area within the two defined squares bordering on the improvement, and south of Bank street, as directed or required by the charter, and running the same distance with the territory that had not been .subdivided by the extension of Twenty-fourth, Twenty-fifth and Twenty-sixth streets. The distance from Bank street to Portland avenue is six hundred and forty feet, and the distance from Twenty-sixth street on the east to Twenty-first street on the west exceeds .two thousand feet; from Bank street south to St. — 91 — Xavier street is a distance of about four hundred and twenty feet, and this territory is divided by Twenty-fifth street, leaving a square between Twenty-fifth and Twenty-fourth streets on the west, and a square between Twenty-fifth and Twenty-sixth streets on the east, and these two squares bordering on Bank street, the contiguous area is assessed to the depth of two hundred and ten feet on each square. The appellant’s lot lies within the square between Twenty - fith and Twenty-sixth streets, and the testimony, uncontradicted, shows that the surface of the street bordering on his lot is almost level with the adjoining land, with scarcely any excavation or cut required, while on the square between Twenty-fourth and Twenty-fifth streets there is an average cut of three and one-half feet, or nearly so, and the cost of the excavation is fixed by the engineer at one thousand eight hundred dollars, when but little, if any, was required fronting the square where .appellant’s property is located ; still the latter was taxed to pay for this excavation, or the work done on a square entirely distinct from his lot. This mode of assessment could not have been contemplated by the charter in a case where the area on the one side of the improvement to be made is surrounded by principal streets, and a mere extension of intersecting streets from the opposite side, where the territory is already defined into squares, would produce that equality of burden sought to be obtained by the provisions of the charter. If, therefore, Twenty-fourth, Twenty-fifth and. Twenty-sixth streets are extended as the dotted lines on the map show, from Bank street to Portland avenue, you have — 92 — the territory that must be taxed in order to produce-equality in taxation, and at the same time carry out the plain meaning and spirit of the charter. The charter itself fixes the mode of assessment and the-extent of the area to be taxed in a case like this. In Caldwell v. Rupert, 10 Bush, 179, the territory was so large and so located as to render it certain that a subdivision would subsequently be made, so-as to form squares approximating those already laid off in the city. In such a case the council is to determine the extent of the area to be taxed, having the same depth on each side of the improvement. As- said by this court in Schmelz v. Giles, 12 Bush, 491, the purpose is to charge the cost of the improvement on the property to be benefited by it. It is. true that when the extension of the parallel streets' is made to Portland avenue, the distance from Bank street to the former street is six hundred and forty-feet, making the one-half to be taxed three hundred and twenty feet, while from Bank street, on the opposite side, soutli to St. Xavier street, it is only four' hundred and twenty feet, making the one-half to be taxed two hundred and ten feet. So you would assess, three hundred and fifteen feet on the one side and two hundred and ten feet on the other: The squares, it is true, would not be equal, but the area to be-taxed is to the centre line, and the property being benefited, and the tax by the square foot, the inequality of the area is not such as to> make it open to constitutional objection. As said in Schmelz v. Giles, “those having more square feet of ground will receive a corresponding increase of benefits.” The. — 93 — squares in a city are not all of the same shape or dimensions, and the fact that one square is larger than another can make no difference in the event you ■can approximate equality in fixing the burden. In the case of Stengel v. Preston, &c., 89 Ky., 616, 'decided at the present term, the peculiar formation of the territory bordering on Overhill street necessitated the apportionment according to the extent of the area bordering on the improvement. ' The territory between Overhill street and Broadway had not been subdivided into squares, and no imaginary extension of Wilson, Fetter and Rogers streets, through the ill-shaped territory beyond Overhill street, so as to produce equality in the burden. The council, therefore, had to fix the depth for taxation on this territory, and then, by reason of the excessive burden caused by excavation, and having complete power over the. •subject-matter, apportioned the cost in proportion to the number of square feet owned by each proprietor, and for the additional reason that benefits flowed alike to all. The court did not mean to hold in that opinion that a square defined bjr principal streets, such as contemplated by the charter, or the property thereon, could be taxed to improve another and distinct square, and it is only in cases where the contiguous property on the opposite side of the street is not defined into such squares as gives to the city council the powei to make such an apportionment. In the firstinamed case the charter fixes the mode of assessment, hnd in the last-named case it is with the city council. The ■court was discussing the case before it, and with the right of the council to designate the property to be — 94 — taxed, and to judge of the burdens to be imposed, thought proper, by reason of benefits received, and to equalize the burden, to make each lot-owner contribute. It is not argued, nor will it be contended, that this territory between Bank street and Portland avenue will be subdivided by principal streets, running from east to west — that is, from Twenty-sixth to Twenty-first street. All the territory requires is to extend the streets running north and south from Bank street to Portland avenue as they are found on the map of the city, and you have the taxing district. On the plan adopted by the city council, they have fixed the depth at two hundred and ten feet. Now, when you come to improve Portland avenue, you can extend the area only to the same depth — two hundred and ten feet — and, therefore, you have lying between the area that has been taxed a space of two hundred and ten feet that escapes all taxation for such improvements. The fact that there is a long strip of land between these two principal streets — Portland avenue and Bank street — with no intersecting streets, affords no reason for disturbing the provision of the city charter imposing on the property bordering on the square the burden of improving it. If the space between Bank street and Portland avenue was as great as that between Twenty-sixth and Twenty-first streets, then it would not only be within the power of the council, but their duty, to fix the area to be taxed. No such question arises in this case, and the charter itself having fixed the extent the property is to be taxed, it is plain the court below erred in so apportioning the cost as to make the appellant's prop — 95 — erty pay for improving the street bordering upon a different square. The charter amendment, approved on the 24th of March, 1882, provides that “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.” Under this provision, the work having been completed and the contract complied with, we perceive no reason, as this case must be reversed, why the appellee, if he desires it, may not have a reapportionment of the burden as indicated in the opinion, and the appellant required to pay in the same manner and in the same proportion as if Twenty-sixth, Twenty-fifth and Twenty-fourth streets extended north to Portland avenue, the taxing area to be fixed at the centre of the square —that is, instead of two hundred and ten, it should be three hundred and fifteen feet from Bank street. This reaches the center between Bank street and Portland avenue. In Loeser v. Redd, 14 Bush, 18, this court said: “Where the property contiguous to the improvement is bounded by principal streets, and lies within a square, all that is left to be done under the law in such cases is to determine, by calculation, that equality in the apportionment as directed by the charter, the law having designated the property to be taxed.” If the judgment below is followed, it would result in making the appellant, whose property lies within a square, pay for improving the street contiguous to and bordering on an entirely different square; and not only so, but would, in effect, exempt a space of — 96 — two lnmdrecL and. ten feet of ground lying between Bank street and Portland avenue from any taxation for street improvements. The judgment below is reversed, and remanded for proceedings consistent with this opinion.