City of Louisville v. Murphy

5 S.W. 194, 86 Ky. 53, 1887 Ky. LEXIS 98

• Court: Court of Appeals of Kentucky
• Decided: June 18, 1887
• Status: Published

Opinion

CHIEF JUSTICE PRYOR

delivered the opinion of the codrt.

These two cases, the one in the name oí the City of Louisville against Daniel Murphy and others, and the other in the name of P. B. Reed against the same parties, were heard together in the court below, and argued as one case in this court.

The.object of each action is to enjoin the assessor of tlie city of Louisville from including in Ms tax-bills an item of thirty cents on each one hundred dollars’ in value of. taxable property levied to pay the interest on bonds issued by the city to the Louisville, New Albany and St. Louis Railroad, and to the Elizabeth-town and Paducah Railroad. The entire amount due or to become due by the bonds is two millions five hundred thousand dollars ; five hundred thousand dollars due in 1891 to the first-named road ; one million due to the' last-named road in 1888, and the other million in 1903; nearly all of the bonds remain unpaid, and all bearing interest.

By an act to amend the charter of the city of Louisville, approved March 30, 1880, it was provided that “the general council of the city of Louisville shall, for the purpose of providing for the payment of the principal and interest of the bonds issued by said city to the Elizabethtown and Paducah Railroad Company, dated October 1, 1868, and the bonds issued to the same company, dated January 1, 1873, and the bonds issued to the Louisville, New Albany and St. Louis Railway Company, dated September 1, 1871, continue to levy annually and cause to be collected a tax of thirty cents on each one hundred dollars’ worth of the property, real, personal and mixed, money, choses ■ in action, bonds, stocks and evidences of debt in said city, subject to taxation under the revenue laws of the State of Kentucky, and said levy shall continue to be made so long as it shall be necessary to pay the principal -and interest of said bonds. Said taxes, when collected, shall be paid into the sinking fund of said city, and said sinking fund shall with said taxes, and other resources, pay the aforesaid bonds.

“Section 5. The bonds authorized to be issued by this act, and all other bonds of said city for which the city is primarily liable, shall be a charge on the sinking fund of said city.

“ Section 6. Nothing in this act shall repeal the authority which the city of Louisville has to levy and collect taxes to pay the principal and interest of the bonds herein charged on the sinking fund, should said taxes be necessary to pay the same.”

By a subsequent act of May 12, 1884, amending the city charter, it is provided :

“Section 3. The general council shall in each calendar year, as early in the month of December as practicable, by ordinance, levy an ad valorem tax not exceeding the following rates : For city purposes proper, not more than eighty-five cents on each one hundred dollars; for the support of the high schools and common schools, not more than thirty cents; for meeting the principal and interest of the bonds issued to the Elizabethtowm and Paducah, and the Louisville and New Albany and St. Louis Railroads, not more than thirty cents and a half ; for the use of the sinking fund, not more than forty cents; for the House of Refuge, not more than five cents; for cleaning and repairing senders, not more than two cents; for cleaning and repairing public ways and including footways and crossings, not more than thirty cents ; for reconstruction of carriage-ways of streets and alleys in conformity with section 6 of the charter amendment act, approved February 20, 1873, not more than twenty-six cents; for bonds under the ordinance and vote of 1883, not more than twelve cents. * * *

“ Section 4. If, in any year, the general council shall fail to pass a levy ordinance, or if the levy ordinance in any year shall be invalid or inoperative, the rate of taxation for the succeeding year shall be as follows, and any tax-bill made by color of an invalid levy ordinance shall be valid to that extent: For city purposes proper, seventy-five, cents on each one hundred dollars’ worth of property subject thereto ; for school purposes, thirty cents ; for subscription to the Elizabethtown and Paducah,' and Louisville, New Albany and St. Louis Railroads, as long as these taxes are rteeded, thirty cents; for the sinking fund, forty cents ; for the House of Refuge, two cents;, for cleaning and repairing public ways, eight cents ; for cleaning and repairing sewers, one cent; for reconstruction of carriage-ways, six cents ; for bonds under ordinance and vote of 1883, twelve cents; in each case on the one hundred dollars’ worth of property subject to such tax.”

For some unaccountable reason the city council failed to pass any levy ordinance for the collection of taxes for city purposes for the year 1887, and, therefore, the only authority for collecting the taxes for' this year for the purposes of the city is the act referred to, the fourth section, by which the Legislature has said that, in the event the city council should in any year fail to pass an ordinance for that purpose, or, if passed, the ordinance should prove to be invalid or inoperative, then the legislative ordinance shall be enforced at the rate of taxation therein prescribed.

It is now maintained by counsel for the appellants that the legislative ordinance embraced by the fourth section of the act, in so far as it attempts to authorize the collection of taxes to pay the principal and interest of these bonds, is invalid and void ; and if not, that the tax imposed is not needed to pay the bonds or the interest on them for the year 1887.

The manifest object of the Legislature in adopting the fourth section of the act in question was to provide the city with means to carry on the municipal government in the event the council failed to pass ah ordinance authorizing the tax, and to provide a remedy for imposing taxation in the event the ordinance passed for that purpose should prove invalid. The contingency upon which this legislation is to be enforced has transpired, and the principal question is as to the validity of the enactment.

It is conceded by counsel for the appellants, that as no levy ordinance was passed, all the taxes imposed by the fourth section can be collected, except the tax to pay these bonds, because a definite and specific sum has been fixed by the Legislature, to be collected without condition or limitation as to all other taxes; but as to the bonds, the levy is not only conditional upon the non-action of the council, but is made to depend upon the question as to whether such a levy is in fact needed for the payment of this indebtedness. That as there is no one to judge of the necessity for such collection, the city council having failed to take any action, neither the assessor or the receiver of taxes can assume to exercise this discretion, nor could the Legislature have invested them with such a power if such had been the object of the act.

If the construction placed upon that act by counsel is the correct one, we should not hesitate to reverse the judgment below. ■

The Legislature may delegate the power to the general council of a municipality to legislate as to its internal affairs; in other words, the general council is the local legislature of the city government, and to that body may be confided a discretion as to the wants and necessities of the local public, but to confide the power to the city officer or collector to impose taxes at his pleasure, even with a limitation, is not sanctioned by any judicial decision or constitutional precedent.

The object in creating the sinking fund, or the corporation known as the commissioners of the sinking fund of the city of Louisville, was that certain revenues then existing, belonging to the city, and such as might afterwards be acquired for that purpose, should be applied to the payment of the principal and interest of the public debt of the municipality. The act of 1869 increased the resources of the sinking fund, and the act of March 30, 1880, directed that the general council should, for the purpose of paying off these bonds, that is, the principal as well as the interest, continue to levy and collect every year this thirty cents tax, to be paid over by the treasurer of the city to the sinking fund commissioners. This entire bonded debt was to be paid out of the funds belonging to the sinking fund, and the evident purpose was to raise the money by taxation to meet not only the interest on the bonds, but to have the money in the sinking fund to pay the bonds as they matured. Nor were the resources of the sinking fund to be applied alone to this railroad debt, but to the entire debts of the city, and the fund to be held sacred for that purpose. If the purpose of this taxation was to pay the interest only, and not the principal of the bonds, the question presented would be one of more difficulty. But the tax was levied, or directed to be levied, to pay the entire debt, principal and interest. The accumulation of the money is to pay the principal when due, as well as the interest, and this is denominated a sinking fund.

It is certain that the bonded debt, and for the payment of which the sinking fund is chargeable, exceeds nine millions of dollars, and near two millions of these railroad bonds outstanding, and the resources of the sinking fund will not exceed four and a half millions ; and while the resources of the sinking fund may be sufficient to pay this particular bonded indebtedness, as it matures, for the next few years, there are other liabilities existing to which its resources may be applied; and that there is a surplus ready to pay a portion of the principal as it becomes due is no reason why the collection of the tax should be restrained, or a restraining order go because this tax is not needed for the year 1887; for this would exclude the idea of the power of the Legislature or the council, under its authority, to provide means under this taxing power conferred to meet the principal as well as the interest due on the bonds.

Whether there is an actual necessity for the imposition of this tax for the year 1887 is not, it seems to us, a material inquiry. Its collection is not indispensable, but might be postponed, and yet, by withholding the collection, the resources of the sinking fund are being lessened for the payment of the debt of the city.

The city council could decline to make a levy of thirty cents upon the ground that the resources of the sinking fund were ample, or would be made so in succeeding years, to meet these debts. They might levy under the act of May 12, 1884, a less sum than thirty and one-half cents to pay the principal and interest of the bonds, but this has not been done, and no levy imposed for any purpose, not even to defray the ordinary expenses of the city, and in that event the Legislature has already provided in express terms the rate of taxation to be imposed, including the tax to pay these bonds, which is thirty cents, as long as these taxes are needed. What did the Legislature mean by the use of the words as long as these taxes are needed is the important inquiry. It certainly did not mean to say that if the fund on hand was sufficent to pay the interest due on the bonds no tax should be imposed. The annual levy was not to pay the interest alone, but to raise a fund to pay the principal as well. To raise the whole sum by taxation when the debt becomes due would create a burden that no local public could bear, and, therefore, the object of the tax was to pay the interest and have a fund accumulating to pay off these bonds at maturity. There is no discretion left with the assessor or the tax receiver in regard to the amount of tax to collect, where the city council has failed to pass any ordinance, or the ordinance, if passed, is invalid. The tax is thirty cents, and so declared by legislative enactment. The city officers have no power to increase or diminish it, nor the right to judge of the necessity for collecting it. There has been no delegation of power to them by the Legislature, and the duty of collecting, under this legislative act, the thirty cents for the payment of these bonds, is as imperative as the collection of any other taxes imposed by it, This tax is to be collected as long as needed, that is, until these bonds are paid off and the law exists under which the tax is imposed. If the words as long as needed had been omitted, the same meaning would have attached to the ordinance, as it could not well be contended that after the bonds were discharged, or a fund sufficient in the hands of the commissioners to pay these bonds, that the council or the tax-gatherer could proceed to collect this tax. A direction to the council to impose the tax as long as needed, means only its imposition until the bonds are paid off or a sufficient sum in the hands of the commissioners for that purpose, raised by this tax, which is equivalent to payment. A tax to be imposed as long as needed to pay a particular debt means an imposition of the tax until the debt is satisfied. The discretion in this case is with the city council as to the amount of tax. to be imposed; they may lessen it or not at their will under the act of 1884. But if such a power had been given to these officers, it would be null and void. The right to collect the thirty cents is only when the council declines to act, and when they fail to discliage this duty the legislative act, being mandatory, the officer proceeds to collect the thirty cents, and will continue to do so as long as the council declines to impose taxation for city purposes, or until these debts are paid.

This tax may be a heavy burden for the year 1887, but the council evidently thought otherwise, else they would have controlled .the taxation by diminishing the amount. It was doubtless believed by some that the sum ought to be reduced, and by others not, and knowing the existence of this legislative ordinance and the fact that by its terms taxes were imposed for all city purposes, declined to make any levy.

But whether or not their act in failing to make a levy was an implied adoption of the legislative ordinance is not important, for it is plain that the act of the Legislature as to the amount of tax for the purposes in question is certain, specific, unconditional and mandatory, and with this construction, there can be no difference between the counsel on either side or the court as to the application of the law to the facts. That the tax may not be essential or necessary for the years ’87, ’88, and ’89 will not stay the operation of the fourth section of the act of May 12, 1884, and whether it should have been thirty cents or less is equally unimportant in this judicial proceeding. When the council fail to pass a levy ordinance the Legislature says that a tax of thirty cents shall be collected as long as these taxes are needed, and that is not to pay the interest for one or more years, or the bonds maturing in one or more years, but until the debt is paid. The question of expediency is not an argument for or against the validity of this tax. It might have been diminished, if onerous, by the council, in whom was vested the power, but the arm of the chancellor can not be extended to grant the relief.

It is the duty of the commissioners of the sinking-fund to make any surplus profit over to the city in the manner pointed out by the charter, or the act creating the corporation. It is to be assumed that they will discharge this duty. The judgment, therefore, dismissing tlie action of P. B. Reed against the appellees is affirmed.

The question of the right of the mayor to employ counsel has been raised in the case of the Mayor against the city heard with this case. His right to an injunction is denied by the opinion already delivered in the case of P. B. Reed against the tax-collector.

While, as a general rule, the mayor of a city has no authority by virtue of his office to employ counsel, the power being conferred by the charter or by the Legislature of the city, cases of emergency may arise when the power must necessarily exist. It is made the duty ■of the mayor to see that the law and ordinances of the city are faithfully executed, and that the official duties of the city officials are faithfully performed. In this case the council had failed to impose any tax. Tlie city was left without means, as the mayor had the right to suppose, of carrying on the city government.

The officials were proceeding to collect a tax with-cut any ordinance of the city council. The city council was disposed not to move the one way or the other. 'The assistant city attorney advised action of some sort by the mayor. He was in doubt as to the validity of the act, but was not disposed to take steps, and we think properly, against the action, or rather the non-action, of the city council, and the steps about being taken by the city officials to collect the tax by distraint and otherwise. In such an emergency he called on counsel for advice, and brought the action to restrain what was supposed to be an illegal collection of a tax unlawfully imposed. We think that such a power existed, nor are the cases of Fletcher v. The City of Lowell, 15 Gray, 103, and Butler v. Charlestown, 7 Gray, 12, in conflict with this view of the question. His appeal as mayor, however, must be dismissed on the merits of the controversy. This view as to the right of the mayor is sustained by the case of The Mayor v. Lockett, 13 La., 545, and while that case goes further than this court would be disposed to go, yet it is based on the fact that it was the duty of the mayor to see that the laws of the city are faithfully executed. We think the mayor has no general power to authorize litigation in behalf of the city or to control it. If so, he could disregard the legislative will of the municipality, bringing and dismissing suits at his pleasure. It is certainly an exceptional case where it should be allowed, and one that seldom arises ; but the emergency in this case justified the act, as all the parties acted, no doubt, in the best of faith.

It is insisted by counsel for the appellants that neither the sinking fund commissioners nor the bondholders should have been made parties. This question oniy involves one of costs, so trifling as not to demand a reversal if the appellants are right. We have not considered it.

The judgment below is affirmed.