98 Ky. 319 | Ky. Ct. App. | 1895
DELIVERED THE OPINION OE THE COURT.
This action was brought by appellant to compel appellees, who are .members of the general council of the city of Louisville, to levy a tax of forty cents on the $Í00 of taxable prop
Tbe appellant is a corporation, created by an act of the-legislature of Kentucky, approved March 9, 1867, providing, among other things, that “tbe mayor, the president of tbe board of aldermen for the time being, and three persons, to be chosen by tbe general council on joint ballot, as hereinafter directed, and their successors in office, shall constitute tbe ‘Commissioners of tbe Sinking Fund of the City of Louisville,’ and by that name shall have corporate powers and existence, may sue and be sued, and do and perform ail things necessary to execute the duties required and powers given them by this act.”
By the terms of this act all the assets and income of the sinking fund of said city were vested in and placed under the control and management of appellant, and upon it was imposed the duty of applying the funds so supplied to it, to the payment of such debts of the city as were made a charge upon the sinking fund, so far as the same could be so applied on fair terms, and, as to any surplus thereof, it was given power to invest the same in bonds of the city of Louisville or of the State of Kentucky, or in such stocks as should be approved by a vote of a majority of each board elect of the general council, by yeas and nays.
These provisions seem to indicate the general purposes, powers and duties of the corporation, as set forth in the act creating it; and the allegations of the petition, which under take to define its duties, are that it is “by law charged with the care, custody and disbursement of the funds provided by law to be raised by taxation and otherwise for the purpose
This then may, we think, be taken as a fair statement of the general duties of the appellant corporation and of the general purposes of its creation.
The question involved here, however, relates more particularly to its powers, and especially to the power it is here undertaking to exercise, through the aid of the chancellor, of compelling the legislative department of the municipal government to furnish it with the funds necessary to discharge maturing allegations of the city of Louisville which have been made a charge upon the assets under its control. Can the chancellor grant the relief sought and at the instance of appellant compel the general council to levy the tax for the benefit of the sinking fund?
It is alleged in the petition that by legislative enactment all the bonds for which the city of Louisville is primarily liable are made a charge upon the sinking fund of the city, and that appellant is chargeable with the payment of the annual interest thereon, and with the creation and maintenance of a sinking fund sufficient to pay the principal thereof at maturity; that this bonded debt now amounts to the sum of $8,815,000, on which the annual interest is $408,170, and that it is necessary, in order that appellant may comply with its obligations, that it should be provided in each year with a revenue sufficient to pay this interest, together Avith the expenses of conducting its business, and with an annual sum sufficient in the aggregate to meet the principal of the bonds at maturity. It is further alleged that, for the year 1894, the only tax levied for its benefit was the annual license tax provided for by the act of July 1,1893, from which it was supposed that a revenue entirely sufficient for its pur
In addition to the several ordinances and, special acts passed at the time of the issue of each series of bonds, and either authorizing or directing the levy of a specified tax to meet the same, as set forth in the petition, counsel for appellant have quoted in their brief and seem to rely upon an act of March 15,18C9, entitled “An act to increase the resources of the sinking fund,” in which it is provided as follows, to-wit: “The general council shall, in the month of April or May, 1S69, and in one of the months of each succeeding year thereafter, levy a tax of forty cents on each $100 worth of such
And by the fourth section of which act it is also provided as follows, to-wit: “The resources of the sinking fund shall not be diminished, but may be increased by the general council.”
These provisions of the act of 1869, it is claimed, are mandatory upon the council, and its duty thereunder, it is said, is purely ministerial, and one which the appellant, in its corporate capacity and under its charter power, “to sue and be sued,” may enforce in this action by mandatory injunction.
Waiving, for the present, the question as to whether appellant, though for some purposes an independent and distinct corporation, and yet for other purposes a mere branch or adjunct of the municipal government, could, in any case, maintain an action to enforce the discharge by the legislative department of the city of an admitted ministerial duty, it seems to us clear that the right asserted by appellant does not exist in this case for the reason that the act of 1869'is no longer in force. The legislature of Kentucky, which, by that act, made it the duty of the city council to levy this annual tax of forty cents on the $100 worth of property in lieu of all other taxes for the payment of the bonded debt, and which provided that the revenues of-the sinking fund should not be diminished but might be increased by the general council, has, by the act of July 1,1893, regulating the government of cities of the first class, established an entirely different system of taxation, and proyided a wholly different
By the provisions of section 3011 of the Kentucky Statutes, being part of the act of July 1,1893, the general council was empowered to provide for a very elaborate system of license taxes or fees upon almost every conceivable kind of business carried on in the city of Louisville for the benefit of the sinking fund, from which, as is alleged in the petition, it was expected that a very large revenue would be derived. And in section 2981, Kentucky Statutes, being part of the same act, it is provided as follows, to^wit: “In the ordinance fixing for any year the tax rate the general council shall subdivide its levy as follows: A levy for school, 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 the construction of streets, a levy for street repairs, a levy for the construction and repair of sewers, a levy /for the house of refuge, a levy for charitable institutions, a levy for parks, a levy for general purposes, and a deficit tax. The general council may omit any of the foregoing Series when not demanded by the public interests.”
The authority thus given to the council to omit any of the levies provided for “when not demanded by the public, interest,” wou/ld seem to leave the question of levying or not levying a ta/x for the benefit of the sinking fund to the judgment and thfe discretion of the council. And the power conferred uponI it to provide a revenue by the license system would seem to leave to the discretion of the council the question as to h 0w the bonded debt of the city shall be provided for,
Nor is it an answer to this to say, as contended by counsel for appellant, that section 3010, Kentucky Statutes, shows an intention on part of the legislature to leave the existing provisions of the law regulating the sinking fund undisturbed. The language of that section, so relied on, is: “The sinking fund, to pay the bonded debt of the city, is hereby continued as now established by law.” This language clearly does continue the existence of the appellant corporation, but does not continue in force all the existing statutes regulating the raising of revenue for the benefit of the sinking fund. It is true that it follows after the section which gives the council the power Eiüá discretion to levy or not to levy an ad valorem tax for this purpose, but it is also true that it is immediately followed by the s&ction which authorizes this very extensive system of license ta^es from which it was expected that its principal revenue wou^d be derived. So that, upon the principle contended for by counsel themselves, and in any view of the question, it seems quiteyclear that this last section of the statute, which deals directW with this, question of providing a revenue for the sinking! fund, must be taken as conclusive evidence of the fact thay section 3010 does not mean that the statute of 1869, whi chVprovided for an ad valorem tax of forty cents on the $100 inylieu of all other taxes, was to be continued in force. i
We are of the opinion, therefore, that the act of \J869, relied on for appellant, as well as the special acts pav^d at various dates at which the different series of bonds\ were issued, has been superseded by the provisions of the \Kentucky Statutes referred to, and that under section 29S|t these statutes the council may, in its discretion, omit to teUT
If we are correct in this conclusion, it follows that this proceeding can not be maintained, and we might pass over entirely the question as to whether or not there is anything in the relations existing between these parties that would forbid the maintenance of this action.
It is to be observed, however, that while their functions are entirely distinct, yet the connection between appellant and appellees is peculiarly close and very delicate. Both are charged with responsible duties to the city. Appellees constitute the legislative department of the city and appellant is its most important financial agency. The president of the board of aldermen is also a member of the board of commis-sianers, and three of the other four members of this latter board are elected by the general council. The records of that board are subject at all times to inspection by any member or committee of the council; that board can not invest any of its funds in stocks without the approval of the council; it must make to the council monthly reports of its condition, and also an annual report, showing its disbursements for the year, with vouchers for the same; its members may be removed by the council for misfeasance or malfeasance, and the council must fix the compensation of its members. So far, then, as the relative obligations and duties existing between the parties themselves are concerned, they seem to be largely upon the appellant and in favor of appellees, and not calculated to suggest the right on part of the former to force upon the latter the discharge of an alleged duty unless that right be clearly and explicitly given it by the law.
Again, the purposes of appellant’s creation seem to be few, though important, and to be well defined by the act
But has it any right to demand either from the city itself as a municipality, or from any separate and distinct department of the city government, that money be supplied to it, even though it has to be raised through the levy of a tax by the legislative department of the city, with which to pay obligations of the city that ought to be paid by it, provided only the city furnishes it with funds for the purpose? We do not think so. Nor do we think that appellant is in any such sense the representative of the holders of the city’s bonds or charged with the duty of paying them as to authorize it to demand that this tax be levied for the purpose indicated, even though the bonded obligations of the city can not be met at maturity. Of course a holder of the city’s bonds which might be allowed to remain unpaid would have the right to sue and compel payment from the city, but he would have bis remedy entirely independent of the sinking fund,
For the reasons indicated the judgment of the lower court sustaining the demurrer and dismissing appellant’s petition is affirmed.
