Adams v. Do Dominques.

failure of the cross-plaintiffs, who had claims against other owners, to prepare their case. The court, under section 411, required the mortgagee to execute bond before any part of the proceeds were paid over to it. This was proper.

(5) Some of the heirs were not before the court. The heirs of Sam Murphy are properly before the court; and, as shown by the proof, the parties before the court are the only ones who have any interest in the land.

(6) The will of Mrs. Murphy was not properly authenticated.

The will of Mrs. Murphy, which was probated originally in California, and then probated in Kentucky, in the Fayette county court, was properly admitted in evidence. It must be conclusively presumed that the Fayette county court had proper evidence before it when it admitted the paper to probate. The action of the Fayette county court is conclusive, unless vacated as provided by law. Morrison v. Fletcher, 119 Ky. 488, 84 S. W. 548, 27 Ky. Law Rep. 124.

(7) Her will was not properly construed.

Whether the circuit court decided correctly in determining that the daughters of Anna Murphy took a fee under her will does not concern the purchaser of the land. All the parties were before the court, and if the grandchildren are not satisfied with the judgment of the circuit court they can take an appeal; but the purchaser of the land will be protected in his title, although the court may err in its distribution of the proceeds.

Judgment affirmed.

City of Owensboro v. Sweeney.


LING.-June 17, 1908.

City of Owensboro v. Sweeney

Appeal from Daviess Circuit Court.

T. F. BIRKHEAD, Circuit Judge.

From a judgment of dismissal on demurrer to the petition plaintiff appeals-Affirmed.

J. Taxation-Uniformity—Equality.—Under the Constitution, declaring that taxes shall be uniform on all property subject to taxation within the territorial limits of the authority levying the tax and shall be assessed at a fair cash value, the fundamental theory on which all poperty taxes are imposed is that the property shall contribute in proportion to its value, and thus bear as near as may be its equal share of the burden.


Municipal Corporations-Special Taxes for Local Improvements -Validity.-A municipality may levy a tax on the abutting land for a local impovement and the tax may be assessed according to the frontage of the property without regard to its value; the constitutional provisions relating to equality and uniformity of taxation not being applicable to special taxes.

3. Same.-Special taxes cannot be levied by a municipality unless the property charged receives a corresponding physical, material, and substantial benefit therefrom.

4. Same. The sprinkling of streets does not confer a special benefit on adjacent property in the sense of contributing to its value, and a special tax for such purpose cannot be sustained, and Act March 21, 1906 (Laws 1906, p. 276, c. 94), authorizing the common council of cities to provide for sprinkling the streets and to assess the cost thereof by front foot against the property abutting on the streets, is invalid.

City of Owensboro v. Sweeney.

GEORGE W. JOLLY for appellant.


1. Constitutional Law. The Act of March 21, 1906, (Acts 1896, p. 376. ch. 94) authorizing assessments of abutting lots on streets to pay the cost of sprinkling the streets in front thereof and making assessment a lien on the lots is not in violation of the constitution of this State. (Gosnell v. Louisville, 104 Ky., 213.)

2. The Front Foot Rule.-Apportionment of the cost of sprinkling the street against abutting lots by the front foot is not a violation of any provision of the constitution. (Lexington v. McQuillan's Heirs, 9 Dana, 514; Louisville v. Hyatt, 2 B. Mon.. 177; Covington v. Boyle, 6 Bush, 204; Covington v. Worthington, 88 Ky., 206; Marshall v. Barber Co., 23 Ky. Law Repporter, 1971; Cooley on Taxation (3rd Ed.), 1217 to 1223; 25 A. & E. Ency. Law. 1183, 1201; Dillon on Mun. Corp. 752 to 761; Hamilton on Special Assessments, 219 to 226; Parsons v. District of Columbia, 170 U. S., 45.)

3. Street Sprinkling is a Public Purpose.-Sprinkling streets is a public purpose for which taxes may be levied; and inasmuch as the abutting property receives a special benefit in addition to that enjoyed therefrom by the general public, the cost thereof may be assessed against such abutting property. (Maydwell v. Louisville, 116 Ky., 885; State v. Reis, 38 Minn., 371; Sears v. Boston, 173 Mass., 71; Philips Academy v. Andover, 175 Mass., 118; Reinken v. Fuering, 130 Ind., 382; Carthage v. Frederick, 122 N. Y. 268; Goddard, Petitioner 16 Pickering, 504.)

4. Ordinance for street sprinkling valid. Third class cities under sections 3290, subsection 7, and 3438 had power to provide for sprinkling streets and were not required to sprinkle all in the city, prior to the passage of the act of March 21, 1906, and an ordinance creating a sprinkling district before the act went into effect was valid, and an ordinance making an assessment, to pay the expense thereof, on the abutting property per front foot, after the act went into effect was valid.

5. Assessments spring out of taxing power. The power to make assessments "spring out of the sovereign power of taxation," section 3290, subsection 1, confers a general power to levy and collect taxes. Subsection 12 confers power to levy advalorem taxes on real and personal property and franchises, for city not exceeding $1.50 per hundred, school tax, licenses and capitation tax. What effect is to be given to subsection one? It confers power to levy special taxes or assessments.

6. Enforcement of assessment.

The assessment being past due,

City of Owensboro v. Sweeney.

being fixed and ascertained, a suit in equity for the enforcement of the lien may be maintained.

W. T. ELLIS and C. M. FINN for appellee.

MILLER & TODD and C. S. WALKER of counsel.


1. That under charters of cities of the third class, as they existed prior to the attempted amendment of March 21, 1906, the common councils of cities of the third class had no right to provide for sprinkling of the streets at the cost of the abutting property owners fronting on the streets sprinkled.

2. That the act of March 21, 1906, (Acts of 1906 p. 376) is unconstitutional.

3. That the ordinances of the city of Owensboro of April 18, 1906, and of June 29, 1906, attempting to sprinkle streets at the cost of the abutting property owners fronting thereof are void. 4. That the petition does not state a cause of action.


Maydwell, &c. v. City of Louisville, 25 Ky. Law Rep., 1062; Duke, &c. v. O'Bryan, &c., 100 Ky., 710; Chicago v. Blair, 24 L. R. A, 412; New York Life Insurance Co. v. Priest, 71 Fed. Rep., 815; O'Neal v. Tyler, 3 N. D., 47, (53 N. W., 434); Schwartz v. City of Oshkosh, 53 Wis., 490, (13 N. W., 450).


The only question we need consider in this case is: Has the General Assembly of the State the power to enact a law giving cities the right to adopt ordinances imposing upon property abutting upon the streets and public places of the city a tax based upon the frontage of the property for the purpose of defraying the cost of sprinkling the streets and public places upon which the property abuts?

It has been expressly ruled by this court in May

vol. 129-39

City of Owensboro v. Sweeney.

dwell v. Louisville, 116 Ky. 885, 25 Ky. Law Rep. 1062, 76 S. W. 1091, 63 L. R. A. 655, 105 Am. St. Rep. 245, that an ordinance enacted in pursuance of legislative authority levying an ad valorem tax upon property for the purpose of sprinkling the streets is not unconstitutional. The opinion was rested upon the ground that the sprinkling of streets contributes to the preservation of the public health, and hence the tax levied was for public purposes within the meaning of section 171 of the Constitution, providing that "taxes shall be levied and collected for public purposes only." The reasoning of that opinion, and the conclusion therein reached, we adhere to; but there is, as we shall endeavor to show, a marked difference in principle between laying a distinct tax for this purpose upon all property of a city, or upon all of the property in a taxing district if the city is divided into taxing districts, and levying a special tax upon real property according to its frontage. In the case before us, the tax is not levied upon property according to its value. The value of the property is not taken into consideration. Nor is the tax apportioned to correspond with the benefits received. A vacant lot, with a frontage of 50 feet, and worth only $100, must pay the same amount of taxes as a highly improved lot, with the same frontage, but worth $100,000. There seems to be something radically wrong with a tax that is arbitrarily assessed without . any reference to the value of the property or benefits conferred, and, although it is everywhere recognized that perfect equality in taxation is impossible of attainment, the fundamental theory upon which all property taxes are imposed is that the property shall contribute in proportion to its value, and thus bear as near as may be its equal share of the burden. And

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