Fidelity Trust & Safety Vault Co. v. Voris' Exrs.

— 317 — Opinion op the court by JUDGE HOBSON Reversing. On February 1.4, 1894, the general council of the city of Louisville passed an ordinance fixing the grade of Third street from the south line of Brandéis street to the north line of K streeet extended, and ordering the improvement of the carriage way 42 feet in width from a line 106 feet south of Brandéis avenue to the north line of K street. The territory contiguous to the improvement was mot defined into squares by principal streets, and the council, by ordinance, provided that the cost of the improvement should be laid upon the property lying on either side of the street to be improved, and within 200 feet of it. The improvement was made under the ordinance, and this suit was filed by the contractor to enforce his lien upon the property for his work. Third street runs substantially north and south. About 106 feet south ■of Brandéis avenue it forks. The west fork is known as “Old Third Street,” or “Park Place,” and has been a traveled way maintained by the city for many years. The east fork, known in the record as “New Third Street,” is the street ordered to be constructed. Appellant’s property’ on which the burden of this improvement was placed by the ordinance, lies west of Old Third street, or Park Place; and between it and the improvement is the street in. front of it, and also a lot of ground belonging to the Louisville Industrial School of Reform. It is insisted for appellants that the cost of the improvement can not be assessed against their property, as they do not front upon it, and that as the cost of maintaining the street in front of them, as well as part of the cost of maintaining Fourth street and Brandéis avenue, falls upon them, if they can also be assessed for the improvement of New Third street they — 318 — may be assessed1 for three streets running substantially north and south. The situation is shown in the following map: Sections 2833, 2834, Kentucky Statutes, are as follows: “When the improvement is the original construction of any street, road, lane, alley or avenue, such improvement shall be made at the exclusive cost of the owners of lots in each fourth of a square to be equally apportioned by the board of public works according to the number of fee.t owned by them respectively, and in such improvements the cost of the curbing shall constitute a part of the cost of the construction of the street or avenue, and not of flbe sidewalk. Each sub-division of the territory bounded on — 319 — 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 for the improvement of such public ways shall state the depth on both sides fronting said improvement to be assessed for the cost of malting 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 iait the rate of six per cent, per annum against the respective lots. 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 or orders to do justice to all parties concerned; and in no event if such improvement be made as provided for, either by ordinance or contract, shall the city be liable for such improvement, without the right to enforce it agaiinst the property receiving the benefit thereof.” It wiill be observed that each subdivision of the territory bounded on all sides by principal streets- is to be deem(ed a square, and that the cost of the improvement of a street by original construction is to be apportioned in each fourth of a square equally. When the territory is divided into squares, each fourth of a square- is the basis of the apportionment. When the -territory is not defined into squares by principal streets, the depth on both sides fronting the improvement to be assessed for the cost of making it is to be defined by the ordinance. The statute does not — 320 — authorize any property to be assessed under this power, except that “on both sides, fronting said improvement/' The reason of this is that the apportionment for the improvement is to be made, as expressed in the last clause of section 2834, “against the property receiving the benefit thereof.”. That part of the statute which makes each fourth of a square the unit, where the land is .divided into squares, is clearly inconsistent with the idea that, in determining the depth on both sides which muy be assessed for an improvement, the council may cross another principal street, and lay the burden on property fronting on that street, and deriving no benefit from the improvement. Jf the council may cross one street, it may cross two or more, and the property of the individual might thus be taken for public purposes without just compensation as provided in tire Constitution. We can not presume the Legislature intended any such result, and, the words of the statute not requiring such a construction, it can not be adopted upon doubtful intendment. This court has often held that the basis of all .'assessments of this character is presumptive benefit received, and that an assessment which amounts to spoliation will not be enforced. Sutton’s Heirs v. City of Louisville, 5 Dana, 28; Courtney v. Same, 12 Bush., 419. Preston v. Roberts, 75 Ky., 570, Stengel v. Preston, 89 Ky., 623 (13 S. W., 839), and Boone v. Nevin, 15 R., 548 (23 S. W., 512), are relied on to sustain the judgment. The reasoning of the first case supports the conclusion we have reached in this case. We fail to see in either of the other cases anything in conflict with it. The facts of those cases, under the statute there before the court, distinguish them from this case. The city of Louisville is not a party to this appeal; neither is the Industrial School of Reform; and what their — 321 — liability may be to tlie contractor, under the facts presented, we can not therefore now determine. Judgment reversed, and cause remanded for a judgment pursuant to this opinion. .