Richardson v. Mehler

Dissenting opinion by

Judge Guffy:

I dissent from the opinion rendered in this case for several reasons, among which I mention the following: My opinion is: that the ordinance which, it is alleged, authorized the improvements for which the property of the appellants was adjudged to bo sold, was utterly void. This being true, there can be no valid contract made or entered into for such improvements', and no lien could be created upon the property of the appellants for the improvements in question. The act of t'he Legislature which attempts to authorize such improvements as those in question to be made a,t the cost of the property owners is in violation of section 171 of the Constitution of this State. It is too clear for argument that the burden imposed by the law in question is a tax. It is manifestly for the benefit of the public, and hence it must be true that it should be levied upon all the property within the territorial, limits of the city authority levy*431ing the same. The act. in question is also in' violation of section 13 of the Constitution and section 242. Section 13 provides that no man’s property shall be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him. Section 242 provides that municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation, etc. It is perfectly manifest that the street improvements in question are made for the benefit of the public, and the public has the same right to enjoy and use the same that the property owner has,, and! it therefore follows that requiring tlie property owner to pay the expense of the improvements in question is in violation of the several sections of the* Constitution, supra. The statute is also in violation of the Federal Constitution, which provides that no person shall be deprived of his property without due process of law. Section 2838, Kentucky Statutes, is also in conflict with sub-section 22 of section 59 of the Constitution. The said sub-section forbids the Legislature by special act to authorize the creation, extension, and enforcement, impairment, or release of liens. It will be seen from' the statute in question that It provides for the creation of liens in the city of Louisville in regard to street improvements, and provides what shall be evidence of the acts necessary to create such liens, while no such provisions are made in respect to the creation of other liens in any other part of the State, nor as. to -other liens ini the' city. The. statute is also' in conflict" with .sub-section 1 of section 59, which prohibits the Legslature from regulating the practice or jurisdiction of courts of justice, and the statute in question provides a rule of evidence in respect to-*432street improvements that is not made applicable to any Other controversy. In my opinion, the object of the present Constitution was to give complete and equal protection to all the citizens of the Commonwealth, and any law which requires the citzem of any town or district to pay for public improvements is in violation of the Constitution, and contrary to .natural justice; that it is substantially taking private property for public use without any compensation. If the streets and sidewalks are necessary for the public, the whole public- should pay for the same. If they are not for public purposes, there is no excuse at all for making the same. Many other reasons might be given showing the illegality and injustice of th'e .so-called statutes under which these oppressive burdens are enforced; but, inasmuch as the same would not affect the majority opinion in this case, I deem it unnecessary to specify the same. I most earnestly and respectfully dissent from, the opinion rendered in this case. It is a well-settled rule of law that a party seeking the enforcement of a statutory right, or remedy must pursue the statute strictly, or at least substantially. It seems to me that the statute itself has been almost totally disregarded in this case. It seems clear to me that the judgment appealed from should be reversed, with directions to the court below to dismiss the petition..