Murphy v. City of Louisville

71 S.W. 934, 114 Ky. 762, 1903 Ky. LEXIS 46

• Court: Court of Appeals of Kentucky
• Decided: February 10, 1903
• Status: Published

Opinions

Opinion of tub court by

JUDGE PAYNTER —

Reversing.

The question involved is, shall the city assessor of Louisville, a city of the first class, assess the franchises of certain public service corporations for taxation for city purposes, or the board of valuation and assessment? The solution of this question depends upon whether the general revenue act of 1902, Sess. Acts 1902, pp. 281 to 392, inclusive) repeals the act of March 19, 1898 (S'ess. Acts 1898, pp. 96 to 102, inclusive). The latter is an act concerning the assessment and valuation for taxes of corporate franchises and intangible property by cities of the first and second classes. This act expressly confers upon the city assessor the authority to assess the franchises and intangible property of the corporations in question but franchises of railroads are not included in this list. Previous to that time, under the general revenue law, which went into effect November 11, 1892, such franchises were assessed by the board of valuation and assessment, composed of the auditor, treasurer,’ and secretary of State. It is admitted that the act of 1898, if constitutional, repeals so much of the act of 1892 as authorized the board of valuation and assessment to assess these franchises, and that it was in force when the act of 1902 was passed. The act of 1902 is a general revenue act, the title of which is extraordinary, in that it purports to be an amendment to the revenue law approved November 11, 1892, as amended by twelve acts specifically enumerated in the title. Each of these amendments were general laws, and amendatory of the act of 1892. The title concludes, “that such act of November 11th, 1892, and as amended by the above stated subsequent acts and amendments thereto as now amended and re-enacted will read as follows.” It would appear from the title of this act that the Legislature intended that there should be no mistake as to the purpose intended to be accomplished by the new enactment, and that there could be no question but what it was intended to be a substitute for the acts to which reference is made in the title. Tbe act of March 19, 1898, applied only to cities of the first and second classes, and doe® not purport to be an amendment to the revenue act of 1892, or amendatory to any of the amendment thereto. If the Legislature had intended that the act of 1902 should also be substituted in lieu of the act of 189S, it seems extremely strange that, in its enumeration of the acts, it would have failed to refer to it as one of the acts proposed to be changed. In 1890 an act was passed authorizing the city assessors of cities of the third class to assess the franchises of certain corporations for taxation, and no reference is made to that act. Then there were two acts, which in a certain sense were general, but in application purely local, that were not mentioned or referred to in the act of 1902. These acts Avere only general in the sense that they referred to all cities of the classes mentioned therein, but they are local in the sense that they apply alone to certain cities.

In construing an act, the important thing is the ascertainment of the intention of the Legislature. To do this, aa'o must consider the title of the act, its context, and the purpose of its enactment. It is well to bear in mind that the universal rule' is that repeals by implication are not favored, and further, that when one act is local in its nature or application, or relates to particular places or persons, and the other a general one, they will both be upheld, and considered as forming one consistent whole. It is said in Cope v. Cope, 137 U. S., 686, 11 Sup. Ct., 223, 34 L. Ed., 832, that “nothing is- better settled than that repeals (and the same may be said of annulments) by implication are not favoréd by the courts, and that no statute will be construed as repealing a prior one unless so clearly repugnant thereto as to admit of no other reasonable construction.” The same rule was recognized in McChord v. L. & N., 183 U. S., 483, 22 Sup. Ct., 165, 46 L. Ed., 289. If, under this rule, it could not be held that the act of 1898 was not repealed, it is certain that the rule for the interpretation of statutes with relation to the effect of a general upon a local law does control. The Legislature evidently did not have its attention directed to the subject of the act of 1898, and did not intend to derogate from that act when it made no special mention of its intention to do so. This court has universally recognized this rule of interpretation. In Commonwealth v. Cain, 14 Bush, 525, the court said: “It is a familiar rule of construction, both in England and America, that a statute can only be repealed by an express provision of a subsequent law or by necessary implication. There must be such a positive repugnancy between the provisions of the statutes that they can not stand together or be consistently reconciled. This rule applies when both statutes are of a general nature, but when one is local in its nature or application, or relates to particular places, or persons, and the other is general, they will both be upheld and construed as forming one consistent whole.” Endlich on Interpretation of Statutes recognizes the same rule, as section 223 reads as follows: “It is but a particular' application of the general presumption against an intention to alter the law beyond the immediate scope of the statute to say that a general act is to be construed as not repealing a particular one; that is, one directed towards a special object or a special class of objects. A general later affirmative law does not abrogate any earlier special one by mere implication. cGcncralia specialibus non clerogant/ The law does not allow the exposition to revoke or alter, by construction of general words, any particular statute, where the words of the two acts, as compared with each other, are not so glaringly repugnant and irreconcilable as to indicate a legislative intent to repeal, but may have their proper operation without it. It is usually presumed to have only general cases in view, and not particular cases, which have been already otherwise provided for by the special act, or, what is the same thing, by a local custom. Having already given its attention to the particular subject, and provided for it, the Legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention is manifested in explicit language, or there be something which shows that the attention of the Legslature had been turned to the special act, and that the general one was intended to- embracé the special cases within the previous one, or something in the nature of the general one making it unlikely that an exception was intended as regards the special act. The general statute is read as silently excluding from its operations the cases which have been provided for by the special one; for, as wa-s> said of the relation of a general act to a local one applying to a single county of the State, ‘it is against reason to suppose that the Legislature, in framing a general system for the State, intended to repeal .a special act which the local circumstances of one county had made necessary.’ The fact that the general act contains a clause repealing acts inconsistent with it does not diminish the force of this rule of construction.” Independent of the unusual title of the act, under this rule of interpretation, we should hold the act of 1898 was not repealed; but the title to the act furnishes an additional reason for so holding, because it manifests an intention to only substitute the new for the previous acts to which reference is made in the title, and kindred acts of a general nature. The general repealing clause of the act can only apply to any purely general law affected by the act, not to laws of local application.

On behalf of the appellee much importance is attached to the fact that article 3, section 8, of the act of 1902, used substantially the same language as was contained in the act of 1892, which authorized the board of valuation and assessment to assess franchises in question for taxation; but this language is used because all the cities, other than the first, second, and third classes, were affected by the act, and the franchises therein were to be assessed by the board of valuation and assessment. The language used in the section and article referred to was to embrace the cities other than those of the first, second and third classes. It was not necessary to attempt to except these cities from the operation of the act, because that had been done by the previous acts. Besides, to have employed such language, making such exceptions, might have invited criticism to the effect that it was in conflict with section 60 of the Constitution, which provides that the “General Assembly shall not indirectly enact any special or local act by the repeal of any part of a general act or by exempting from the operation of the general act, any city, town, district or county, but laws repealing local or special acts may be enacted.” It must be understood that the court is not expressing an opinion on that question, as it is not here. By the act of 1902 the Legislature tras dealing with the act of 1892 as it found it — with the cities of the first, second, and third classes excluded from its provisions with reference to the assessment of certain franchises. It is therefore possible to uphold the act of 1898 and the act of 1892 as amended by the act of 1902, and to construe them as forming one consistent whole.

It is insisted upon behalf of the appellee that the act of 189S is violative of sections 51 and 156 of the Constitution. Section 51 of the Constitution reads as follows: “No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length.” The title to the act of 1898 concerns the assessment and valuation for taxation of corporate franchises and intangible property by cities of the first and second classes. There is but one subject to the title, and that is the assessment and valuation for taxation of corporate franchises and intangible property. The mere fact that it applies to cities of different classes can not make the act relate to more than one subject. Section 156 of the Constitution requires cities and towns to be classified, and the same law applies to all cities of a given class. This does not mean that a general law could not be made applicable to all the cities and towns of the Commonwealth.

The proposition is urged that the act of 1898 is' invalid because it is an attempt to revise or amend the general law in regard to revenue. This proposition is answered in Purnell v. Mann, 105 Ky., 87 (20 R., 1146) 48 S. W., 407. In that cáse the court said: “There is no direct reference made iñ the act in question to any particular section of the general election law amended or repealed by it, nor do wé think section' 51 expressly or impliedly requires it done. The act,' as passed and • published, is full and specific enough; as to all subjects embraced by it, to show for what parts of the general election law it is substituted, and those parts are, both in terms and by implication repealed, leaving the residue unaffected and in full force. Manifestly, neither members of the General Assembly nor the people could misunderstand, or be deceived as to the purview, purport or effect of the act.” Section 60 of the Constitution was not violated by the act of 1898. The act of 1898, not indirectly, but directly, repealed part of the act of 1892. That section doeá not mean that a general law can not be passed "in reference alone to cities of two classes. If a general 'law' applies to cities of all classes, it necessarily must' apply to the cities of the same class. Such a law would not be. violative of the provisions of the Constitution. As illustrative of this, counsel for appellant suggest section 1486 of the Kentucky Statutes, which provides that “in all cities and towns of the first, second, third and fourth classes' there shall be registration of all the qualified voters of the respective cities and towns, which registration shall be held and conducted as herein provided.” This section is certainly constitutional. We are of the opinion that the act of 1898 is constitutional, and that the act of 1902 did not repeal it.

Judgment is reversed for proceedings consistent with this opinion.