McDonald v. City of Louisville

68 S.W. 413, 113 Ky. 425, 1902 Ky. LEXIS 64

• Court: Court of Appeals of Kentucky
• Decided: May 21, 1902
• Status: Published

Opinion

Opinion op ti-ie court by

JUDGE BURNAM

Appirming.

This action was brought by the appellant, E. L. McDonald, a citizen and taxpayer of the city of Louisville, for himself and all others similarly situated, to obtain an injunction agaiust the appellee, enjoining the collection of all ad valorem taxes levied by the general council ifbr the fiscal year ending August 31, 1902, upon the ground that they failed and refused to levy a “deficit tax” as required by law. And in an amended petition they seek the same relief on the ground that the general council had tailed or refused to levy a tax as required by the act of March 16, 1890, to create a pension fund for disabled firemen, their widows, dependent children, fathers, and mothers. A general demurrer was sustained ta both the original and amended petitions, and each of them dismissed, and this appeal is to reverse that judgment.

The decision of this case involves the construction of sections 156, 180 and 181 of the Constitution. Section 156 is as follows: “The cities and. towns of this Commonwealth, for the purposes of their organization and government, shall be divided into six classes. The' organization and powers of each class shall be defined and provided for by general laws, so that all municipal corporations of the same class shall possess the same powers and be subject to the same restrictions.” Section 180 provides: “The General Assembly may authorize the counties, cities or towns To levy a poll-tax not exceeding one dollar and fifty cents per head.' 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.” Section 181 provides that “the General Assembly shall not impose taxes for the purpose of any county, city, town or other municipal corporation, but may by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes.” Pursuant to section 156 of the Constitution, the General Assembly passed an aot for the government of cities of the first class of this Commonwealth, which was approved on July 1, 1893. The first section of the act, which is section 2742 of the Kentucky Statutes, provides that “the inhabitants of cities of the first ciass are hereby continued corporate by the name and style which they now bear, with power to govern themselves by such ordinances and resolutions for municipal purposes as they deem proper, not to conflict with this act nor the Constitution and laws of this State, nor of the United States.” And in section 2981 of the statutes, in conformity with section 180 of the Constitution, it was provided that: “Jn the ordinance fixing for any year the tax rate, the general council shall subdivide its levy as follows: A levy for schools, a levy for the sinking fund, a levy for police purposes, a levy for the fire department, a levy for street and sewer cleaning, a levy for sprinkling-streets, a levy for reconstruction of streets, a levy for street repairs, a levy for construction' and repair of sewers, a levy for the house of refuge, a levy for charitable- institutions, a levy for general purposes ,and a levy for deficit taxes.” By an amendment of 'March 15, 1898, provision was made for a levy for library purposes and poll taxes; and it was further provided that the general council might omit any of the foregoing levies when not demanded by public interest. This section was amended by an act approved March 2.0, 1900, so as to make its closing sentence read as follows: “The general council 'shall’ cause the foregoing levy to be made for the purposes stated by the ordinance fixing the tax rate for each year.” Acts 1900, c. 16. The levy ordinance of December, 1901, does not contain a levy for a deficit tax, or to> create a pension fund, as required by the act of March 16, 1900, and appellants insist that for this reason the entire levy is illegal and void. Section 2982 provides that “in no fiscal year shall the general council appropriate or expend, or contract for the expenditure of more than ninety-five per cent, of the estimated revenue of the current year, unless more than that shall be actually collected. And if in any year less than ninety-five per cent, of the estimated revenue shall be collected, any deficiency within ninety-five per cent, 'may’ be provided for in the levy of the next year, and shall be called the deficit tax.”

■ The general council is not required to levy a deficit tax unless there is an actual deficit in the revenues for the year, and if we give a construction to both sections 2984 and 2982, so as to make both of them effective, we mugt (onclude that the General Assembly did not intend to require the levy of a deficit tax whether there was any necessity for it or not, but it was intended to'leave the levying of this particular tax to the sound discretion of the general council, who necessarily knew whether such deficit in fact existed or not. It is not alleged in either the original .or amended petitions that there was any necessity for the levy of a deficit tax for the fiscal years ending the 31st of August. 1902, and it must therefore be assumed that 95 per cent, of the estimated revenue for 1901 had been collected when the levying ordinance for 1902 was passed by the general council. In the absence of the conditions pointed out in section 2982, the general council was not required to levy a tax for deficit taxes, anjdi the demurrer was therefore properly sustained to the original petition.”'

The purpose of the amendment to appellees’ charter approved March 1G, 1900 (Acts 1900, c. 8), as expressed in, the title, was for the “better government, administration, disposition and discipline of the fire department; and to create a perpetual pension fund for disabled firemen, tlieir widows and dependent children, fathers and mothers; and to create a perpetual board of trustees for the management and conduct thereof, and to pension members thereof after service, of a term of years.” The general administration and government of the fire department are imposed upon the board of public safety. Section 16 of the1 act provides that “there shall be organized in connection with said department a board to be known as the board of trustees of the firemen’s pension fund, which shall be composed of the chairman or president of the board of public safety, the chief of firemen, the city attorney, the comptroller and city treasurer.” And section 17 provides: “There shall be levied and set apart by the general council of cities of the first class each year one-lialf of one per centum of each one hundred dollars of value of the taxable property in said cities for said year as a fund for the pensioning of crippled and disabled members of the fire department, and of the widows and dependent children under the age of sixteen years, and dependent fathers and mothers of deceased members of the fire departmnt of said cities. All moneys received under this tax levy .shall constitute and be kept as a fund to be called the firemen’s pension fund, and the said board heretofore designated is hereby declared to be a trustee of all said fund, and shall have power and it shall be their duty from time to time to invest the same in whole or in part as they shall deem most advantageous for. the objects of said fund.” Section 20 provides that “the said board of trustees shall have the power to draw such pension fund from the treasury and may invest the same, or any part thereof, in the name of the board of trustees of the firemen’s pension fund, in interest bearing- bonds of the United States of the State of Kentucky, and all such securities shall be deposited with the treasurer of said city as ex officio treasurer of said board.” Section 21 provides: “The interest received from the investment of- said sum shall be applicable to the payment of the pensions under this act, and it shall be within the power of the board of trustees to diminish and adjust the annual rate of per centum authorized by this act to be •set apart for the firemen’s pension fund from the general tax levy for municipal purposes, so that the income front interest, percentage of salaries -of the officers, members and employes, unes and other money's received as set forth herein, shall meet the requirement of the pension list as provided by this act: Provided, that at no time shall the fund exceed three hundred thousand dollars.”

Questions as to the power of the Legislature to impose burdens upon municipalities without their consent have been a prolific source of litigation, and- the- general trend of the decisions is to the effect that the legislative power of taxation is absolute, except as limited by restriction of the State and Federal Constitutions. In the note to the case of State v. Williams, which was decided by the Connecticut supreme court of errors, and is found in 48 L. R. A., 465 (s. c., 35 Atl. 24, 421), the editor says: “Considered as mere agencies of government, municipal Corporations are undoubtedly subject to the absolute control of the Legislature, except, perhaps, as to their property rights. Many of the cases, however, have recognized the twofold character in such corporations — the one public, as regard the Stale at large, in so far as they are its agents in government ; the other private, in so far as they are to provide; the local necessities and conveniences for tlneir own citizens — and have denied the.absolute control of the Legislature over matters referable to the private, as distinguished from the public, character of such corporations. The difficulty in placing a limit to the legislative control over municipal corporations, at least where their property rights are not concerned, is to find any constitutional restriction upon it. This difficulty was obviated by Justice Cooley in People v. Hurlbut, 24 Mich., 44, 9 Am. Rep., 103, by resorting to the doctrine of an implied constitutional guaranty to municipal corporations of the right of self-government in respect to purely1 local affairs. He based this doctrine upon the fact that the Constitution was adopted in view of, and recognized the existence of, a system of local government well understood and tolerably uniform in character, existing from the early settlement of the country. The opinion says that the question, broadly and nakedly stated, is ‘whether local self-government in this State is or is not a mere privilege, conceded by the Legislature in its discretion, and which may be withdrawn at any time at pleasure.’ As already shown, he regarded if as a constitutional right, and not merely as a legislative privilege.” He confined the doctrine strictly' to matters which relate to the private1, as distinguished from the public, functions of municipal corporations. And in the subsequent case of People v. Common Council of Detroit, 28 , 15 Am. Rep,, 202, Judge Cooley, in his opinion, said: “The constitutional principle that no person shall be deprived of property without due process of law applies to municipal corporations in their private capacity, as well as to corporations for manufacturing" and commercial purposes; and when a local convenience or need is to be supplied, in which the people of the State at large or any portion thereof outside of the city limits are not concerned, the State can no more by process of taxation take from the individual citizen his money to purchase it, than they could, if it had been procured, appropriate it to State uses.” In People v. Lynch, 51 Cal., 15, 21 Am. Rep., 677, the court held that the' provision of the Constitution requiring the Legislature to provide for the organization of cities and incorporate villages, and the provision that each town or city and'- incorporate village shall make provision for the support of its own officers, subject to such restrictions and regulations as the Legislature may prescribe, contemplate cities and villages having the essential feature of American «cities and villages; the very idea of an American city or village involves the idea of self-government, of local officers selected by the inhabitants, and reflecting the wants and wishes of the inhabitants, and that such officers shall exercise their own judgment in respect to the internal affairs committed to their charge by the laws- of their creation. zVnd it was there held that the Legislature could not deprive the city council of all discretion with respect to a local improvement within tlie limits of the city, when by the charter xlie matter of such improvement was left to the judgment and discretion of the local body. Substantially the same doctrine was announced in State v. Moores 55 Neb., 480, 76 N. W., 175, 41 L. R. A., 624; City of Evansville v. State, 118 Ind., 426, 21 N. E., 267, 4 L. R. A., 93, and in many oilier cases, which may be found cited in notes to State v. Williams (Conn.), 48 L. R. A., 465 (s. c., 35 Atl., 24, 421). These cases held that the power of the Legislature was supreme in matters of general concern, but that in all matters purely local the power of the Legislature to impose burdens is denied. The cases relied upon to support the contention of appellant from this State were all decided before the -adoption of the present Constitution; and in those relied on from other States, the Constitutions of such States do not contain restrictions upon the power of the Legislature similar to ours. Section 181 was intended to take away from the General Assembly the power to impose taxes upon towns and cities, and to confer this power upon the local authorities. In the act in question they have not only imposed a tax upon the city of Louisville, but they also fix the levy and purpose to which the money is to be applied. No discretion is left in the council with regard to the matter. They must continue the levy until $300,000 shall have been accumulated. The wisdom of section 181 is forcibly illustrated in the practical working of this legislation. The tax of 50 cents on the $100 upon the present assessment of the city of Louisville would, yield $637,500 — a sum enormously in excess of what would; under any circumstances, be required. The present levy is $1.50 on the $100. This sum includes the levy for schools and the sinking fund, which aggregate 48% cents, leaving the remainder of $1.10% for other purposes. If we add 50 cents for the pension fund, the levy would be in excess of the maximum rate of taxation allowed by section 157 of the Constitution to cities of the first class. The Constitution has taken from the General Assembly the power to impose taxes for purely local concerns, and whilst they can prescribe the purposes for which such taxes may be levied, and fix a máximum rate therefor, unless they are necessary for the maintenance of the municipality, or involve the interest of the general public outside of such municipality, iheir assessment and collection’ are left to the discretion of the local authorities. In section IT of the: amendment the General Assembly, has disregarded the limitation imposed upon them by the Constitution in such matters, and in consequence thereof it is unenforceable.

Judgment affirmed.

Whole court sitting.