This is a proceeding under the Kentucky Statutes, § 2834, to enforce a lien upon a lot adjoining a part of Frankfort avenue, in Louisville, for grading, curbing, and paving with asphalt the carriage way of that part of the avenue. The defendant, the plaintiff in error, pleaded that its only interest in the lot was a right of way for its main roadbed, and that neither the right of way nor the lot would or could get any benefit from the improvement, but, on the contrary, rather would be hurt by the increase of travel close to the defendant's tracks. On this ground it set up that any special assessment would deny to it the equal protection of the laws, contrary to the 14th Amendment of the Constitution of the United States. It did not object to the absence of the parties having any reversionary interest, but defended against any special assessment on the lot. The answer was demurred to, judgment was rendered for the plaintiff, and this judgment was affirmed by the Kentucky court of appeals. 25 Ky. L. Rep. 1024, 76 S. W. 1097. A writ of error was taken out, and the case was brought to this court. It will be noticed that the case concerns only grading, curbing, and paving, and what we shall have to say is confined to a case of that sort.
The state of Kentucky created this lien by a statute entitled 'An Act for the Government of Cities of the First Class.' Louisville is the only city of the first class at present in Kentucky, and the general principles of the act are taken verbatim from the part of the charter of Louisville which was considered and upheld by this court in Walston v. Nevin, 128 U.S. 578, 32 L. ed. 544, 9 Sup. Ct. Rep. 192. But we take the statute as a general prospective law, and not as a legislative adjudication concerning a particular place and a particular plan, such as may have existed in Spencer v. Merchant, 125 U.S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921, and as was thought to exist in Smith v. Worcester, 182 Mass. 232, 59 L. R. A. 728, 65 N. E. 40, referred to at the argument.
The law provides in the case of original construction, such as this improvement was, that it shall be made at the exclusive cost of the adjoining owners, to be equally apportioned according to the number of feet owned by them. In the case of a square or subdivision of land bounded by principal streets, which the land including the defendant's lot was held to be (see Cooper v. Nevin, 90 Ky. 85, 13 S. W. 841; Nevin v. Roach, 86 Ky. 492, 499, 5 S. W. 546), the land is assessed half way back from the improvement to the next street. Act of 1898, chap. 48; Ky. Stat. § 2833. A lien is imposed upon the land, and 'the general council, or the courts in which suits may be pending, shall make all corrections, rules, and orders to do justice to all parties concerned.' § 2834. The principle of this mode of taxation seems to have been familiar in Kentucky for the better part of a hundred years. Lexington v. McQuillan, 9 Dana, 513, 35 Am. Dec. 159.