Button v. Kremer

Opinion of ti-ie court by

JUDGE BURNAM

— Reversing.

On the 6th of June, 1898, the general council of the city of Louisville adopted the following ordinance for the original construction of the carriage way of Fourth street from the center line of Brandéis avenue, extended, to the south line of Brandéis avenue, extended:

“Be it ordained by the general council of the city of Louisville: That the carriage way of Fourth street, from the enter line of Brandéis avenue extended to the south line of Brandéis avenue extended, shall be thirty-six feet in width, and shall be improved by grading, curbing and paving with vitrified brick, with corner stones and footway crossings across all intersecting streets. Said work shall be done in accordance with the plans and1 specifications on file in the office of the board of public works, and at the cost of owners of ground on the east side of Fourth street from Brandéis avenue to a line 210 feet south and parallel to Brandéis avenue, and extending back to a line 200 feet east of and parallel to Fourth street, and on the west side of Fourth street from an outer line of Brandéis avenue extended, to a line 210 feet south of and parallel to Brandéis avenue extended, and extending back to a line 200 feet west of and parallel to Fourth street. The cost to be equally apportioned among the owners of property according to the number of square feet of ground owned by the parties respectively within the limits above set out, and that all ordinances in conflict herewith be and are hereby repealed. Wm. M. Finley, C. B. C. Sam’l S. Blitz, P. B. C. Chas. C. Martin, C. B. A. Paul C. Barth, P. B. A.

“Approved the 6th of June, 1898. Chas. P. Weaver, Mayor.”

The work was duly constructed in accordance with the specifications of a written contract made with the city by V. Humpich, and was accepted by the city, and the cost, amounting to $280.17, apportioned among the following named owners of property, as appears from the list furnished by the city assessor:

Albert Button, 40x200............. 8,000 sq. ft. $ 26 33

Josephine Berry, 40x200........... 8,000 “ “ 26 33

A Button, 33' 6"xll6.............. 4,234 “ “ 13 94

Mary Callahan, 30x116............. 3,480 “ “ 11 45

Ella Friedlieb, 30x116..............3,480 “ “ 11 45

A. Button, 23.5x116............... 2,726 “ “ 8 97

A. Button, 80x120 ................ 9,600 “ “ 31 60

Totals East side 39,520 sq. ft. $130 08

West Side.

Chess-Wymond Co., 31x95......... 2,945 sq. ft. $ 9 69

Gertrude W. Pate, 65x95.......... 6,175 “ “ 20 32

Frank Schwab, 30x95............. 2,850 “ “ 9 38

Elijah Riggs, 28x95............... 2,660- “ “ 8 76

Chess-Wymond Co., 27' 4"x95...... 2,597 “ “ 8 55

Emma A. Sigel, 30x95............ 2,850 “ “ 9 38

R. T. Meek, 27' 4"x95............. 2 597 “ “ 8 55

Chess-Wymond Co., 1.334x95...... 126 “■ “ 41

Chess-W’ymond Co., 240x95.........22,800 “ “ 75 05

Totals West Side..............45,4300 sq. ft. $150 05

Totals East side..............39,520 “ “ 130 09

Total amount of contract.....85,120 sq. ft. $280 17

And apportionment warrants were issued to the contract- or against the property liable for the cost of the improvement, which was subsequently assigned to the appellee, Henry L. Kremer, who instituted this suit, asking an enforcement of the lien against the property. The city of Louisville was also made a party, with a view of taking a judgment against it in the event the court refused to subject the lots of the other defendants. The defendant A. Button answered that his lots could not be subjected to the apportionment warrants, for the reason that the territory contiguous to Fourth street, between the center line of Brandéis avenue, extended, and the south line of Brandéis avenue, extended, was not on or prior to the 6th day of June, 1898, nor since, defined into squares, or included within territory bounded by principal streets, and further alleged that none of the lots sought to be subjected fronted upon Fourth street, between the center and south lines of Brandéis avenue, extended.

The following facts were agreed to: “First, that Fourth street and Brandéis avenue are principal public streets of and in the city of Louisville; second, that Fourth street extends from the north limits of Louisville south to a point beyond Brandéis avenue, extended; third, that Brandéis avenue extends from First street west to the east line of Fourth street, and no further; fourth, that there is no street west of Fourth street, opposite to the improvement authorized by the ordinance set up herein; fifth, that the territory fronting said improvement is not defined into squares by principal streets.”

The following plat of the territory assessed by the ordinance will assist in illustrating the situation:

The chancellor held that the property of the defendant Button was in lien for the apportionment warrant, and adjudged itsl sale, and the defendant has appealed. He insists that as the contiguous territory is not defined into squares by principal streets, and his lots do not front the improvement, they can not be charged with payment therefor, under section 2833 of the Kentucky Statutes, which is a section of the charters of cities of the first class, and which reads 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 feet owned by them respectively. And in such improvement the cost of the curb shall constitute a part of the construction of the street or avenue and not of the sidewalk. Each subdivision of the 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 for the improvement of such public way shall state the depth on both sides fronting said public 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.” It will be observed that the statute provides for two conditions in which a tax may be levied: First, if the territory to be charged with the cost of constructing the street is. bounded on all sides by principal streets, the cost must be apportioned among the owners of lots in each one-fourth of a square contiguous to the improvement. If, on the other-hand, 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 must state the-depth on both sides fronting said public improvement which are to be assessed for the cost of making same, according-to the number of square feet owned by the parties, respectively, within the depth set out in the ordinance. This case does not fall within either of the conditions recited in the-statute. It is 'admitted that the contiguous territory is not defined into squares, and it is apparent from the admitted facts that appellant’s property does not front that part of Fourth street, with the improvement of which they are sought to be charged in this proceeding. The statute has failed to provide for the exact conditions shown to exist in this case. The tax can not be assessed in either-mode pointed out by the statute, and, if it be upheld, the chancellor must exercise the legislative function of establishing for this particular case a rule of assessment not provided for. “It is a principle universally declared and admitted that municipal corporations can levy no tax, general. or special, upon the inhabitants or their property, unless the power be clearly and unmistakably given. . . . And this rule applies to the assessment for local improvements.” See Dill. Mun. Corp., sec. 605, and Caldwell v. Rupert, 73 Ky., 182. And such power is always strictly construed. Applying this principle to the facts of this case, we reach the conclusion that the general council have no power to impose the cost of the construction of this small part of Fourth street upon any property, and that it's cost necessarily falls upon the city, under its 'contract with Humpich.

For reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent with this opinion.