Russell County v. Hill

175 S.W. 988, 164 Ky. 360, 1915 Ky. LEXIS 396

• Court: Court of Appeals of Kentucky
• Decided: April 28, 1915
• Status: Published

Opinion

Opinion ok the Court by

Judge Hurt

Affirming.

• At a called term of the Russell Fiscal Court, held on the 1st day of January, 1915, the following order was entered upon the order hook of the court:

“In the matter of proposed macadamized road, un,der Act of March 24th, 1914.

“Whereas, certain citizens of Russell County have petitioned this court to improve and reconstruct • a certain section of public road, hereinafter described, within this county; and, Whereas, said petition is accompanied by certain subscriptions of money proposed to be given by. C. A. Hammonds, and about forty other persons, .mostly citizens of Russell Springs and vicinity, said subscriptions amounting in the whole to $2,500.00, which ■ is to be turned over -to the county for the purpose of permanently improving and reconstructing’ the section of road hereinafter described; Now, Therefore, on the 'faith that said sum of $2,500.00 will be turned over to the county for said purpose, and for other good and sufficient reasons ' to the court appearing, Be It Re- , solved and Ordered by the Russell County Fiscal Court, all the justices, concurring, that the public interest de- ■ mauds the-improvement and reconstruction, under the Act of March,-1914, .of that section of the public road ■between Jamestown and Liberty, Kentucky, the county seats of Russell and Casey Counties, respectively, beginning at the end of‘the"Jamestown &■ Greasy Creek .Turnpike Company’s road, about % ■ of a mile north.west of. the. .courthouse in 'Jamestown, and extending to .the corporate limits, of' Russell' Springs, on the south-.east-side; that is,, the. side next to Jamestown.

“If the sum of $10,000.00 shall be more ■ than suffi- ' cient to reconstruct- the aforesaid section of road, then the sum remaining shall be expended in continuing said improvement on'the road leading to Liberty, or towards ...Columbia, as may hereafter be agreed upon by the fiscal ...court and. State Road Commissioner.

■“•Far the said purpose there is hereby appropriated ■Uhe-sum of Twenty-five Hundred Dollars, payable out of tile road fund of 1915, this day levied.”

At the same term of the fiscal court, held on the 2nd day of January, 1915, the following order was entered:

“It is ordered by the court, all the justices concurring, that the county levy for the year 1915 be and the same is hereby fixed at 35 cents on each $100 worth of taxable property for general purposes, and "15 cents bn each $100 worth of taxable property for road purposes. It is further ordered that a poll" tax of $1 for general purposes and 50 cents for road purposes be and the same is hereby levied on each male citizen of Russell County over 21 years of age. The road tax is to cover all outstanding road claims, and the constructing, maintaining, repairing, and . keeping ■ in order all the public roads and bridges in the county, and for the further purpose of covering all appropriations made by the court for the purpose of obtaining State aid for the construction of any section of road in said county.”

Under proper orders of the Russell County Court, made at a called term in February, 1915, the county attorney was directed, by an order of the county court, to take an appeal on behalf of the county to the circuit •■court of Russell County,, from the orders of the fiscal •court above stated. The appellant contending. that the 'fiscal court had no power, jurisdiction, or authority under law to levy a road tax in the sum of fifteen cents, •or any other sum, on each $100.00 worth of taxable property in the county, or a poll tax of fifty cents on each male citizen twenty-one years of age, and over in the .county; and that the orders appealed from for that reason were null and of no effect. The appeal was tried in ¡the circuit court upon an agreed state of facts, which were to the effect, that the fiscal court had made the .orders stated above, and the members of the fiscal court .contend that they had authority and jurisdiction to make said orders, and the' question as. to whether, under the law as it existed on the day the orders were entered the fiscal court had power and jurisdiction to levy a poll and ad valorem tax for the purpose of reconstructing a section of road, under the Act of March 24th, 1914, and whether the said court had ■authority and jurisdiction to. levy a road tax for any road purpose, or for the use of any public road or bridge in Russell County. The circuit court, after an affidavit 'of the county attorney had been filed, stating that the state of facts presented were real, and the proceedings an good faith to determine the rights of the parties,' ad1judged that the orders and proceedings of the fiscal •court appealed from were valid; that same" were duly •and .regularly entered; and that the fiscal court had full power and jurisdiction to make and enter the orders; and dismissed the appeal. The appellant excepted to the judgment of the court, and prayed an appeal to this court, which was granted.

The questions presented upon this appeal are two: First, did the Fiscal Court of Russell County have power, authority, and jurisdiction to levy an ad valorem tax and poll tax for maintaining and keeping in order, the public roads in the county? Second, did it have the jurisdiction and authority to levy a tax for the purpose of reconstructing a public road and making appropriation therefor in order to secure State aid for that purpose, under the Act of March, 1914?

It is true, as contended by appellant, that the fiscal court cannot make any appropriation, nor levy any tax, which it is not authorized by law to do. Powers which are not granted to the fiscal court in that respect, are withheld from it. Laws authorizing the appropriation of public funds, are not to be extended by any kind of construction, beyond the natural and fair meaning of the word.s used, but as a rule, when the power to tax is delegated to the fiscal court, the grant must be strictly construed, and beyond the grant the fiscal court has no authority to go. Jefferson County v. Young, 120 Ky., 456, 86 S. W., 985; Mitchell v. Henry County, 100 S. W., 220; Morgantown Deposit Bank v. Johnson, 108 Ky., 507, 56 S. W., 825; Jefferson County v. Peters, 127 Ky., 453, 105 S. W., 887; Hopkins County v. Givens, 29 R., 993, 96 S. W., 819; Cline v. Jefferson County, 30 R., 1344; Fiscal Court v. Flants, 27 Ky., 453; Woodruff v. Shea, 152 Ky., 657.

It is very clear that authority to the fiscal court to levy taxes and make appropriations for any purpose must be looked for in the statutes of the State. The history of the legislation in this State will show that the power and duties of fiscal courts have always been ^controlled and defined by the legislative authority.

By Section 4281u, Ky. Statutes, Carroll’s Edition, 1915, it is provided as follows: “That the fiscal court of each county shall annually, by order or resolution, levy an ad valorem tax for. county purposes upon real and personal property subject to taxation for State purposes, not exceeding'the rate and limit prescribed by the constitution; and may levy a poll tax not exceeding one dollar and fifty cents on each, male inhabitant thereof. * *

By Sub-section 2, of the section, supra, it is provided as follows: “All taxes for counties shall be levied by an order or resolution of the fiscal court; # * * and the purpose or several purposes for which the same is levied or imposed, shall be'specified in the order, resolution, or ordinance, and the revenue therefrom shall be expended for no other purpose, than that for which it is collected. * * *”

By Section 1840, Ky. Statutes, 1915, it is provided: “The fiscal court shall have jurisdiction to appropriate county funds authorized by law to be appropriated; * * * to erect and keep in repair bridges and other structures, and superintend the same; to regulate the fiscal affairs and property of the county; * * * and provide for the good condition of the highways in the county; * * * and shall have jurisdiction of all such other matters relating to the levy of taxes, as is by any special act now conferred on the county court of levy and claims. ’ ’ This was an act of the General Assembly of October 17th, 1892, as amended by Act of March 21st, 1906.

The statutes, supra, are not affected by the repeal of Section 4307, of the Ky. Statutes, 1909, since that was an act of March 10th, 1894, and was the expression of the legislative will long prior to that expressed in the sections, quoted above.

By Section 1840, supra, the fiscal court was authorized to appropriate county funds to erect and keep in repair bridges and other structures, and superintend the same, and to provide for the good condition of the highways in the county, and generally to appropriate any other funds authorized by law to be appropriated. The maintenance and repair of county roads is, without a doubt, a purpose for which taxes may be levied, as authorized by Section 4281u, supra, and Sub-sections 2, 3, 4, 5, 6, of said section. The provisions of the statutes, supra, would seem to be conclusive of the fact that the fiscal court may levy an ad valorem and poll tax for any county purpose, and that the maintenance and repair, and good condition of the county roads is a county purpose to which the fiscal court may appropriate its funds, and that this authority is granted to it by the legislative authority.

It is contended by. appellant that Section 4306, Kyi Statutes, 1915, and which is Section 20, of the act of March, 1914, prohibits the fiscal court from making the levy of án ad valorem tax of fifty cents on the $100.00 worth of taxable property in the cotínty, and fifty cents upon each poll in the ■ county, for road purposes, as set out in the resolution' of the fiscal court complained of. The section rélied upon is as follows: ‘ ‘ The fiscal court of any county may contract, and pay for making, improving, and keeping in order the whole or any part of the county roads within the1 county by the use of asphaltum, brick, stone block, macadamizing, gravel, or other' process of equal merit, and may contract therefor in manner as provided in Sections 17 and 18 of this act. They may pay for the work done under such -contract in whole or in part out of the county treasury by special levy to be laid, or by -issuing bonds or other evidence of debt for same, -as is provided for in this chapter. ’ ’

Section 17 referred to, relates to the manner of letting contracts to bidders -for construction or maintenance of roads, where the work is to be let to contracts under the provisions of Chapter 110, of the Ky. Statutes (1915); the security which the contractor shall give, and -authorizing 'the fiscal court to reject any and all bids, and -readvertise for same if necessary.

Section 18 referred to, relates to the manner and the place -in which the advertising may be done and the contracts let, and finally provides, that if satisfactory bids cannot be obtained, the fiscal court may have the necessary work done as it deems -best.

It will be observed- that Section 4306, supra, provides only, that the work of making, improving, and 'keeping in order may be let to contracts, -and paid for ■out of the county treasury by special levy to be laid, or Iby issuing bonds or other evidence of debt for same, is where asphaltum, brick, stone block, macadamizing, or gravel, or 'other -process of 'equal merit is used and where bonds are issued to procure the money, it cannot be used for constructing or maintaining roads, except in the way above designated, and by use of such materials as designated.

Section 4307, Ky. Statutes, provides that the money raised from the sale of bonds shall be used solely and alone for the building, constructing, and reconstructing of roads of asphaltum, concrete, brick, stone block, macadamizing, or other process of equal merit. These sections of the act of March, 1914, do not seem to contemplate or embrace the expenses necessary to maintain the common dirt roads in the counties, and which are not let to contracts for their maintenance. Neither does the statute preclude the fiscal court from making, constructing, reconstructing, or maintaining the public roads of the county in any other manner than that specified in Sections 4303, 4304 and 4306.

By Section 4356m, of the 'Ky. Statutes, which was Section 83, of the act of March, 1914, provides as follows:

“Nothing herein contained shall interfere with the right of any county to construct, reconstruct, or maintain its roads and bridges by means of road and other machinery in such manner as the fiscal court may provide, nor shall it interfere with the right of any county to warn in hands on roads as now provided by law, but all contracts let for roads and bridges shall first be let under the provisions of this'act, but should there be no suitable bid, and all bids are rejected under the plan provided, then any county may otherwise contract for the construction, reconstruction, or maintenance of its roads and bridges in such manner as the fiscal court thereof may deem best. ’ ’

Then follows Sections 4356o, 4356p, 4356q, and 4356r, by which it is provided that the fiscal court may have its public roads maintained by requiring the citizens of the county to work upon the roads, and provide for the division of the county into road precincts by the county court, and the alotting of able-bodied male citizens between the ages of eighteen and fifty years to work on the roads in the respective precincts, the appointment of overseers, and the prescribing of their duties. By the terms of the act of March, 1914, it seems that the fiscal courts are authorized to cause the roads of the county or a part of them to be let to contracts for their maintenance, and may let to contracts the construction and reconstruction of the roads in the county, and when such, is done, the contract shall be let, and the work carried! out, and payments máde, and’ the money secured for the purpose as is provided in the act; but in the event no suitable bids are made for the performance of these works, the fiscal court has authority to reject the bids, and to adopt some other system and plan of carrying into effect its purpose of constructing a road, or reconstructing a road, or to maintain a road in good condition. The fiscal court may, also, construct or maintain the roads as an original proposition in some way, other than by letting the work to contractors. To do such .it must have funds for that purpose, which can only be obtained by the levy and collection of taxes, as provided by Section 4281u, and Section 1840, supra. That the legislative authority did hot intend to restrict the fiscal court to the levy of taxes, or the appropriation of the money to purposes, except as provided in Section 4306, supra, is very evident from the various sections of the law of March, 1914, in addition to its expressed provisions. By the provisions of that act the office of road engineer is created, to whom a salary must be paid, and by other provisions of the act, advertising must be done, printing must be had, damages for land taken for road purposes must be paid, machinery purchased and labor paid for, and a great many other expenditures which could not be embraced within the authority set out in Section 4306, supra. Where the roads are maintained by requiring the citizens to work upon them, the fiscal court is given authority to pay the hands for the work, and if the court had no authority to levy a tax, except by virtue of Section 4306, supra, there would be no place from which it could obtain the funds necessary to pay the expenses, and the wages of the hands.

The record does not indicate that the fiscal court of Russell County proposes to construct, maintain, repair, or keep in order the public roads and bridges in the county by letting the work to contractors, and by making contracts with parties for the performance of such work. Neither is there anything to indicate that it is proposing to make, improve, or keep in order any road in the county by use of asphaltum, brick, stone block, macadamizing, gravel, or other process of equal merit, ■except that it may be inferred that the appropriation of $2,500.00, which the levy of fifteen cents upon the $100.00 worth of property and fifty cents upon each poll in the county, which is appropriated to reconstruct a road jointly with the aid of the State, is to be reconstructed in accordance with Article 60, Chapter 110, of the Ky. Statutes, 1915, and as to that part of the levy designéd for that purpose, we will consider further on.

The resolution complained of. which. makes, the levy, seems to be in substantial accordance with tbe provisions of the constitution and of tbe statutes of tbis State, in prescribing tbe purpose for wbicb.tbe levy is made, and is witbin tbe rate and limit prescribed by tbe constitution, and of Section 4281u, supra.

So far as relates to tbe resolution complained of wbicb appropriated $2,500.00 for tbe improvement of a county road in Russell County, and its reconstruction under tbe act of March, 1914, wbicb is Article VI., Chapter 110, Ky. Statutes, 1915, we will look to tbe statutes, wbicb created the' system of public State roads and authorized tbe State and counties jointly to construct such roads. It seems that tbe resolution of tbe fiscal court relating to that subject provides that tbe public interest demands tbe improvement of tbe section of tbe road witbin tbe county described in tbe resolution, and requested that it be reconstructed as provided in tbe act of March, 1914, which is Article 6, Chapter 110, Ky. Statutes, 1915. Tbe resolution contains a description of tbe section of road, and no part of it is included witbin any incorporated city, town, or village. It substantially complies with tbe requirements of tbe statutes. Section 7 of Article 6, Chapter 110, supra, provides tbe method of obtaining the money on the part of tbe county to carry out tbe purpose expressed in tbe resolution. Referring to tbe counties, towns, villages, or other municipalities, tbe statute says: “Any of tbe said municipalities may raise by taxation funds to pay tbe cost of construction of any road or roads or may issue bonds for tbe payment of same in tbe manner prescribed by law, it being tbe expressed intention of tbis section to confer upon towns and villages or other municipalities full power to improve any road or section of road under tbe provisions of tbis act, all proceedings conforming as nearly as possible to tbe provisions of this act.”

It seems that under Article 6, Chapter 110, Ky. Stat., 1915, supra, that tbe fiscal court may levy taxes upon tbe property and polls in tbe county for the purpose^ of improving a road according to tbe provisions of said statute, and they are limited in so doing only by tbe rate and limit prescribed in tbe Constitution, and by Chapter 108a, of tbe Ky. Statutes, 1915, wbicb provide that tbe levies for all purposes shall not exceed tbe rate and limit, there prescribed.

Tbe two resolutions of tbe fiscal court complained of seem to be within the power, authority, and jurisdiction granted to the fiscal courts of the State by the various statutes upon the subject.

. It is, therefore, adjudged that the judgment appealed from be affirmed.