Carpenter v. Town of Central Covington

81 S.W. 919, 119 Ky. 785, 1904 Ky. LEXIS 130

• Court: Court of Appeals of Kentucky
• Decided: June 18, 1904
• Status: Published

Opinion

Opinion of the court by

JUDGE HOBSON

Affirming in part.

By an act of May 13, 1890 (Acte 1889-90, p. 675, c. 1491) the General Assembly made all of Kenton county outside of the cities of Covington, Central Covington, West Covington, and Ludlow a district for the construction of turnpikes. The provision® of the act were not § operative within the limits of the cities named, but applied to all the rest of the county. The act allowed the creation of a road district for the construction of a turnpike road to extend on each side one mile from the proposed road. It required the road and district benefited to be surveyed, and the persons owning property therein to be ascertained. When the cost of construction was determined, the board of county commissioners was required to issue 10 bonds of the county of equal amounts for the aggregate cost of the pike, payable in 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 years, respectively,-to be sold for not less than par, and the proceeds to be applied to pay for the construction of the road. The county commissioners! were required anually for 10 years to levy a tax on all property in the road district liable for assessment for State taxation sufficient to pay one-lialf of the bond and one-half of the interest on the bonds due the following year. They were also required to levy annually for ten years a tax upon all the property in Kenton county outside of the cities named sufficient to pay the other half of the bonds as they fell due, and the interest on the bonds. After the act went into effect, a number of turnpikes; were built in Kenton county under its provisions, and bonds to pay for them were issued and sold as provided in the act. Subsequent to this, 'and after the new Constitution took effect, the town •of Central Covington extended its limits under section 3664, Ky.' St. 1903, taking in appellants’ property, which lay outside of any of the road districts, but within Kenton county, and outside of the cities excepted from the operation of the act. Appellants then brought this suit against the town of Central Covington upon the idea that, as the town had annexed them, and they were required to pay town taxes, the town must assume their liability for the turnpike tax. The question turns upon the proper construction of the statute, which is as follows: “The judgment shall,' when entered, be certified to the legislative board of the •city, who may thereupon annex to or strike from the city or town the territory described in the judgment, and such territory shall become, or cease to become, as the case may be, a part of the town. But the persons owning the territory so annexed nor the territory shall be liable for any indebtedness of said town created prior to said annexation, nor shall any town assess or collect taxes on said property in said territory to pay any .part of said -indebtedness; or liability.” Section 3666, Ky. St., 1903. “If any incorporated town be annexed to another, the town so annexing the territory of another shall be bound for all debts and liabilities, and shall be the owner of all the corporate property, franchises and rights of such municipal corporation.” Section 3667, Id. As the town has the option whether or not it will annex the territory sought to be taken in, it is provided that such territory shall not be liable for the payment of any indebtedness or liability created prior to the annexation; for it would be unjust to allow a town to create a debt, and, after it had received the benefit of the expenditure, annex other territory against its consent, and thus impose on it a liability for indebtedness already' incurred. It is also provided that, if an incorporated town be annexed to another, the town so annexing the other shall be bound for all its debts and liabilities, and shall be the owner of all its corporate property. But this provision • only applies where the existence of one corporation is merged in the other, and, as the annexing town has the option to annex .or not, it may not take in the other town where it is unwilling to assume its liabilities. This provision has no application where unincorporated territory is‘ taken in by annexation. It only applies to the corporate debts and corporate property of “such municipal corporation” where one corporation is taken into another. The territory annexed in this' case was unincorporated, and therefore the town of Central Covington assumed no obligation in annexing it under the statute.

But it is insisted that the statute is in conflict Avith section 171 of the Constitution. This brings us to the second point raised in the case, which will uoav be considered in determining the meaning of section 171 of the Constitution-After the present Constitution took effect, the county authorities of Kenton County, on the idea that all taxes levied by them must be uniform within the territorial limits of their authority, ceased to levy any taxes on the road districts in which the turnpikes were built, and levied the entire tax on the county of.Kenton outside of the cities named. This placed upon appellants’ property, which was mot within any of the road districts, the entire burden of the tax to pay the bonds, whereas by the act of 1890,- under which the debt was created, one-half of the burden should have been borne by the road district in which the turnpike was built. Appellants complain of this increase of their burdens, and it is insisted for appellees that section 171 of the ■Constitution required the county authorities to follow the plan they pursued. That section is as follows: “The General Assembly shall provide by law an annual tax which, with other resources, shall be sufficient to defray the estimated expenses of the Commonwealth for each fiscal year. Taxes shall be levied and collected for public purposes only. They shall be uniform upon all property subject to taxation within the territorial limits of the authority levying the tax; and all taxes shall be levied and collected by general laws. ” It is reasonably clear from the Constitution that it was not intended by its makers to affect in any way indebtedness already incurred or obligations already assumed by any of the municipalities of the State. In section 158, limiting the indebtedness of municipal • corporations, there is this proviso: “Provided, any city, town, county, taxing district or other municipality may contract an indebtedness in excess of such limitation when the same has been authorized under laws in force prior to the adoption of this Constitution or when necessary for the completion of and payment for a public improvement undertaken and not completed and paid for at the time of the adoption of this Constitution.” By section .2 of the schedule all obligations and other instruments entered into before the adoption of the Constitution to the State or any subdivision thereof, and all actions and causes of action, except as therein provided, shall continue and remain unaffected by the adoption of the Constitution. The act of May 13, 1890, had been submitted to the people and had been put into operation by a majority vote. By it, as shown, one-half of the liability was placed on the road district and one-half on the county distinct. There is nothing in the Constitution1 evincing a purpose to shift the obligation of one district to the other; on the contrary, it carefully takes away from the officers of municipalities the power to incur liabilities, beyond the income or revenue of each year without a vote of the people, and under its provisions the county of Kenton could not, without popular consent, assume the liability of the road districts. Among other things, section 157 provides: “No county, city, town, taxing district, or other municipality shall be authorized or permitted to become indebted, in any manner or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose; and any indebtedness contracted in violation of this section shall be void. Nor shall such contract be enforceable by the person with whom made; nor shall such municipality ever be authorized to assume the same.” But,, aside from all this, the requirement of section 171 that taxes shall be uniform upon all property subject to taxation, within the territorial limits of the authority levying the tax has no such meaning as supposed. In the case before us, if the act of 1890 had directed that the bonds of the road district should be issued for one-half the cost of the pike and the bonds of the county for the other half, that the county commissioners should make a levy on the taxable property of the road district to meet its bonds, and that they should make a similar levy on the property of the county to meet its bonds, the case would not be, in substance, different from that presented, for the obligation of the road district to pay one-lialf the debt is just as clear as if different bonds in fact had been issued. The road district is created by the act a quasi corporation, and as such owed one-half the debt. The fact that the bond's were all issued in the name of the county was a mere matter of form, not affecting the substance of the transaction. If several districts of a county become indebted and issue bonds, a tax may be, levied on these districts to pay the debt which, they owe, although a similar tax is not levied on other parts of the county which do mot owe the debt. The reason is that only property in these districts is subject to taxation for the purposes of these debts, and the constitutional requirement is only that taxes should be uniform upon all property subject to taxation within the territorial limits of the authority levying the tax. In levying such a tax the county authorities act as the representatives of the people within the district which created the debt, and the tax is uniform on all of them, and on all property subject to taxation vdtliin the limits of the district. When, therefore, a towrn boundary is contracted, the town authorities may still levy a tax on the old boundary for the debts created, and at the same time levy in addition other taxes for current expenses and the like on the boundary left within the towrn. In the same way, when a town boundary is extended, taxes to pay the existing indebtedness must be levied upon the old boundary. In other words, taxes for a' specific purpose may be levied on the property which is taxable for that purpose, and must be uniform throughout the district which is liable for the tax. But there is nothing in the Constitution to require that a municipality as a whole must levy taxes on tlie property of its entire territory to pay a debt for which the property in only' one district of it is legally taxable. In section 180 of the Constitution it is provided: “Every act enacted by the General Assembly, and every ordinance and resolution passed by any county, city, town or municipal board or local legislative body, levying a tax, shall specify distinctly the purpose for which said tax is levied, and no tax levied and collected for one purpose shall ever be devoted to another purpose.” The purpose of this provision is to protect the people in such states of case as above indicated. The authorities levying the tax must specify the purpose for which it is levied, and when only a special district is liable for the tax the levy should be so made as to indicate the territory on which it is levied. In this way distinct levies may be made by the same municipal authorities on different districts when necessary to meet their obligation, and there is nothing in the Constitution forbidding this to be done. See Board of Education v. Louisville, etc., Ry. Co., 62 S. W., 1125, 28 Ky. Law Rep., 376; Chambers v. Adair, 62 S. W., 1128, 23 Ky. Law Rep., 373. We therefore conclude that the statute above quoted as to the liabilities of the town when territory is annexed is constitutional, and that the course pursued by the Kenton county authorities in levying the tax to pay the bonds entirely on the county district was unauthorized.

The act of May 13, 1890, is still in force. In O’Mahoney v. Bullock, 97 Ky., 774, 17 R., 523, 31 S. W., 878, this court had before it the question whether a similar local act of May 3, 1890 (Acts of 1889-90, p. 33, c. 1231), for the benefit of Fayette county, was in force, and it was held that the act was not repealed by the new Constitution, or by the acts passed in 1892, 1893 and 1894. In Pearce v. Mason County, 99 Ky., 357, 18 R., 266, 35 S. W., 1122, the same question was presented as to- a similar act in force in Mason county, and it was again held that such local legislation was still in force. In that case the court said: “In order that no inconvenience might arise by reason of the alterations and amendments of the law by that instrument, it was deemed proper to provide that the Constitution- left in force all laws of the Commonwealth with which it was not inconsistent. This provision, instead of emphasizing the alleged policy of hostility to existing special legislation, expressly continued it in force unless inconsistent with the Constitution; and when it is- admitted or becomes manifest that a local or special act is not inconsistent with the Constitution, and lias’ not been repealed by a. general law, the question is settled, and the law stands. The positive mandate is against local and -special legislation in the future, and, even if we concede that the Constitution breathes a spirit of hostility to past legislation of that class, it is expressly continued in force until repealed in the manner we have heretofore pointed out.” The only legislation on the subject since these decisions were rendered is the “act' to provide free turnpikes and gravel roads,” approved March 17, 1896 (Acts 1896, p. 39, c. 27), the last section of which contains these words: “This act shall no-t repeal any local act or acts for any county or counties- in this Commonwealth, which have been heretofore pas-sed, in aid of free turnpikes, but shall be an addition thereto.” Acts 1896, p. 46, c. 27. The Legislature thus plainly left in force all local acts on the subject. In Richardson v. Boske, 64 S. W., 919 23 Ky. Law Rep., 1209, and the other cases following it, we had before us different statutory provisions, and it was held that the new legislation repealed the old provisions; but that conclusion can not be sustained here, as the old legislation is expressly left in force. But the acts of May 3, 1890 (Laws 1889-90, p. 121, c. 1261), expressly excepted out of its operation the town of Central Covington, and when appellants’ property was annexed to the town it became a part of the town for all purposes1, and as to all liabilities thereafter created stood just like the rest of the town. Tt is not liable, therefore, to taxation for the construction of a pike undertaken after the annexation, although it is liable to taxation for all those undertaken before its annexation. The annexation of the territory to the town did not affect its- existing liabilities, but by its annexation it was taken into a municipality in which the act •of 1890 was not operative, and therefore it is not subject under that act to taxation where no liability had attached before its annexation. After its annexation to the town it must pay taxes for municipal purposes, and it can not thereafter be made liable for improvements subsequently undertaken in the county district under an act which is not operative as to it.

Section 914 Ky. St., 1903, provides: “Whenever any •county, under laws heretofore enacted, has issued bonds for turnpike road purposes, such county may issue bonds in lieu thereof to mature in not more than thirty years after their date, and bearing interest at not greater rate than such bonds already issued; and any new bonds hereafter issued by any county for such purposes under such laws may be made to mature in like manner and bear such interest. Taxes authorized by such laws heretofore enacted may be levied and collected as may be necessary to pay bonds or interest thereon issued as piwided in this act. But this act shall not affect any law under which bonds for turnpike purposes are authorized to be issued, having a longer time than thirty years from their dates to mature.” After the passage of this statute the Kenton county authorities issued bonds under it payable in 30 years, and took in the bonds issued under the act of 1890. It is insisted that this •was unauthorized. But the bonds issued under the act of 1890 had been issued by Kenton county, and were county bonds within the meaning of the statute quoted. We therefore conclude that the new bonds are valid, but that taxes authorized by the act of 1890 must be levied and collected to pay the new bonds. The only purpose of the statute was to authorize bonds issued for a longer time. The second clause evinces a clear purpose not to change the burden of taxation in any way. Catlettsburg v. Self, 74 S. W., 1064, 25 Ky. Law Rep., 164.

The board of commissioners of Kenton county have been abolished, and their duties have been imposed upon the fiscal court. The fiscal court may therefore make such levies or perform such duties as the board of commissioners might have made or performed under the original act. The appellants have not been guilty of laches barring them of relief in equity. In so far as they have paid taxes, they are without remedy; but each year’s tax is a separate cause of action, and the payment of the tax for one year does not bar the right to contest that for another year. The court should ascertain on final hearing how much of the taxeál sued for appellants should pay. In the condition of affairs, they are not required to make a tender of any amount, as they can not know how much they are required to tender. A man is not required to make a tender in a case of this sort in order to obtain an injunction where he is unable to know how much he owes.

Thé judgment dismissing the petition as to the town of Central Covington is affirmed, but the judgment in favor of Kenton county is reversed, and on the return of the case to the circuit court the sheriff of the county and the memhers of the fiscal court will be made defendants to the action by an amended petition to be filed by the plaintiffs, and the court will on final hearing enter such orders and; judgments as will direct the officers in the discharge of their duties, and ascertain and determine how much of the taxes in controversy plaintiff should pay under the principle¿ above indicated, and require the money paid to the sheriff-