City of Louisville v. Button

118 Ky. 732 | Ky. Ct. App. | 1904

■Opinion of the court by

JUDGE O’REAR

Affirming.

The levy ordinance for 1904 passed by the common council of the city of Louisville made no provision for street sprinkling. Of the total levy of $1.86 on each $100, 33 1-4 cents-were allotted for schools, 25 cents for fire department, 11 1-4 cents for street and sewer cleaning, 10 cents for reconstruction of streets, 5 cents for street repairs, one-half of one-cent for construction and repair of sewers, 4 1-2 cents for the-House of Refuge^ 9 cents for charitable institutions, 6-cents for parks, 4 cents for library, 36 1-4 cents for general purposes, one-half of one cent for firemen pension fund, and one-fourth of one cent for the Board of Children Guardians. Notwithstanding it is alleged that appellant had set apart about $15,000 derived from the 36 1-4 cents levy for general purposes, to be used in sprinkling the streets of the city. Section 180 of the Constitution, as well as section 2980, Ky. St., 1903, require that no tax shall be levied by a municipal legislative body without designating in the levy ordinance the purpose for which it is to be applied. They likewise provide that no tax levied for one purpose shall ever be applied to another. By section 2981, Ky, St., 1903, pertaining to cities of the first class, it is provided: “In the ordinance fixing for any year the tax rate,, the general council shall sub-divide its levy as follows: A levy for schools, a levy for the sinking fund, a levy for police purposes, a levy for 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 Reform, a levy for library purposes,, and a levy for general purposes, and a deficit tax. The-general council shall cause the foregoing levies to be made for the purposes stated by an ordinance fixing the tax rate each year.” It is left to the discretion of the council and mayor as to what levies shall be made each year for the purposes enumerated. Section 2816, Ky. St., 1903. In the ahsence of a legal debt for which the law compels the council to provide the means of payment, the city would not be bound to furnish many of the governmental facilities which its •charter authorizes it to do. The question then narrows .itself down in this case to the one whether “‘street sprinkling” is embraced in the term “general purposes.” Without undertaking to define here what may be included in the latter term, we are clear that its being enumerated with some dozen other divisions, each of which is required to be provided for expressly, if at all, negatives the proposition that one embraces the other. For, if that were true, it would be within the power of the council to levy the whole tax under the head of “general purposes,” defeating entirely the motive of the legislation requiring a particularization of subjects for which taxes are to be levied. The attempted deflection of the “general purpose” fund complained oí was .illegal, and was therefore properly enjoined.

J udgment affirmed.