201 Ky. 5 | Ky. Ct. App. | 1923
Opinion op the Court by
Affirming.
At its 1916 session, the General Assembly of the Commonwealth enacted chapter 43, Acts of that year, page 436, which related to the state militia. The act was a complete law upon the subject and contained 142 sections, and is now chapter 86 of the present Kentucky Statutes. The organized militia is designated in the act as the “Kentucky National Guard.” Section 10 of the act provides that an application to organize a unit of the national guard before it is acted on shall be approved by the county judge of the county in which the proposed unit is to be organized. Its section 128 says: “Where militia organizations have been, or may hereafter be, organized in any county of this state, the fiscal court or corresponding body of said county shall provide and maintain at-
After the passage of the act and in February, 1920, a military unit was organized in Lawrence county pursuant to its provisions, following which the fiscal court of the county provided a duly equipped armory in obedience to what was supposed to be its duties under the section. That fiscal court was succeeded by the present one, and it conceived the idea that section 128 of the act was unconstitutional, and it voted an order directing the county attorney of the county to take possession of the armory and equipment and to sell it pursuant to terms therein specified, and while that officer was preparing to carry out the order this equity action was filed by the Commonwealth on relation of its attorney general, as directed in the section (128) against the fiscal court, its members and the county attorney to enjoin the latter from executing the order and to enjoin the fiscal court from requiring him to do so. The petition fully set out the facts with reference to the organization of the unit and referred to the law applicable thereto, as well as to section 128 imposing the duties upon the counties therein specified, and the court sustained the demurrer filed to it by the defendants. Plaintiff declined to plead further, resulting in a dismissal of the petition, and to reverse that judgment plaintiff prosecutes this appeal.
In the absence of constitutional restraint and limitation the power of the legislature over the various counties composing the state is varied as well as extensive, since
It will be of service at the beginning of the discussion to note that an organized state militia by whatever name called is strictly a state institution and performs exclusively a state service. Indeed, it is the organized power of the country and may be considered the state’s muscular arm with which, as a last resort, judgments and administrative orders necessary for the perpetuation and preservation of our civilized form of government are enforced. 27 Cyc. 505, 18 R. C. L. 1057. The latter citation says: “It may be laid down as a generally accepted rule that the organized militia of the states is a state institution — a (state) government agency. It is so recognized by the various Constitutions; ’ ’ and in the reference to Cyc., the text under the head of “Expense and Maintenance” (of the state militia) says: “The cost of maintaining and training the militia is primarily a state charge.” Supporting that quotation the case of Sweeney v. Commonwealth, 118 Ky. 912, is cited in the note. Other cases are People v. Swigert, 107 Ill. 494; State v. Anderson, 52 N. J. L. 150, and Worth v. Craven County, 118 N. C. 112. Aside from the section making the Governor the commander-in-chief of the organized state militia, our constitutional provisions upon the subject are contained in sections 219-223, inclusive, of that instrument. The pertinent one to the question, involved here is section 220, .which in part says: “The General Assembly shall provide for maintaining an organized militia.” We take it, therefore, that the authorities," supra, as well as our Constitution, indisputably establishes that our organized state militia is purely and exclusively a state institution,
In the case of Hubbard v. Fitzsimmons, 57 Ohio St. Rep. 436, the court had before it almost the exact question we have here, which was the right of the state to impose upon a county the duty to construct and maintain an armory for a unit of the state militia. The Constitution of that state had a provision in it, in substance, the same as section 171 of our Constitution, which was section 2' of article XII of its Constitution. After holding that the militia was purely a state organization and performing exclusively a state purpose, the court, quoting from Daniel v. City of Columbus, 53 Ohio St. Rep. 658, said: “The expenses incident to the performance of a duty of this general character cannot be made the subject of a local imposition. . . . The purpose to be accomplished by this expenditure is common to the state at large; and the taxes by which it is to be met must, in obedience to the requirement of section 2 of article XII of the Constitution, be levied by a uniform rule upon all the taxable property within the state.” There are other cases from the same court to the same effect.
In the case of State of Florida v. Dickenson, 44 Fla. 623, 60 L. R. A. 539, 1 Ann Cas. 122, the same question that we have here was before the supreme court of the state of Florida. Section 5 of article 9 of the Constitution of that state was substantially the same as sections 181 and 181a of our Constitution. The legislature passed a law similar to section 128 of the act of 1916, supra, and it was sought therein to require the fiscal authorities of Jackson county in that state to comply with the provisions of the act. The court held that the statute was unconstitutional because the state militia was purely a state institution and no part of its maintenance could be considered for local or county purposes, and that to sustain the statute would violate that section of the state’si Constituion. Section 2 of article 14 of the Constitution of that state was practically the same as section 220 of our Constitution, and at the end of the discussion the court thus summed up itsi conclusions: “It follows from what has been .said that section twenty-seven (27) of chapter 4684, laws enacted in 1899 (same as section 128, Acts 1916), imposing the duty upon
The only case cited by the Commonwealth directly dealing with the question is Hodgdon v. Haverhill, 193 Mass. 406, but a reading of that opinion will show that it is not in point. In the first place neither the statute nor the involved sections of the Constitution of Massachusetts are set out in the opinion, and we are therefore unable to determine the similarity, if any, between them and those involved in this case. But, assuming that the constitutional provisions were substantially the same, the statute involved, as it appears in the opinion required the municipality to construct the armory and for the state to rent it for a sufficient length of time to remunerate the municipality for the cost of its construction, which at most was an indirect method of forcing the municipality to lend to the state the cost price of the armory and to accept payment on terms provided therein. However, the obligation to only that extent was not arbitrarily imposed on the municipality, but only after it had been voted by the city council, which was its fiscal body.
Another case which we have found is that of Bryant v. Palmer, 152 N. Y. 412. The -statute involved in that case imposed only a part of the cost price of the armory upon the municipality. The opinion was delivered in 1897, and under prior Constitutions of the state its Court of Appeals held that it was competent for the legislature to impose such burdens upon local taxing units, and the new Constitution was adopted in 1894, after the rendition of -those- -opinions without a material change with reference to the maintenance of the state militia. The only added clause in the new Constitution was: “And it shall be the duty of the legislature at each session to make sufficient appropriations for the maintenance thereof” (the militia). In upholding the statute tinder these circumstances, the court said:
“It would be a strained and unnatural construction to hold that the plain, simple language of this constitu*11 tional amendment was intended to reverse the wise policy of the state that has been acted upon for fifty years, and which is founded on considerations approved by the lawmaking power during that entire period.
“It is only reasonable that those great centers of population that are subject to the dangers of riot and disorder, and are liable to the citizens for property lost in consequence, should, have a large number of the armories located within their limits for proper protection, and it is but just that by reason of these great advantages enjoyed certain counties should pay, as they do, a sum estimated to be in excess of half a million dollars a year of the aggregate sum necessary to maintain the militia. ’ ’
It will thus be seen that the opinion was made to turn, not only upon former opinions of the court under a Constitution which it was held that the new one did not materially alter, but also upon recited local exclusive benefits to the taxing unit upon which the statute put the burden, and to make the doctrine of that opinion applicable to the case at bar, even if we should concede its reasoning to be sound, it should appear that Lawrence county, or any other county in the Commonwealth which might be involved, received some exclusive local benefits from the location of the military company within its boundaries over other counties of the state, but which fact we know to be untrue, since the militia serves all the counties of the state alike and the local community does not receive even the remote and incidental special benefit of an increase in its population because of the organization of the company (the members already being localized to the place) nor on any other account, which fact was the controlling one in most of the eases relied on by counsel for plaintiff, which are: Hendrickson, County Judge v. Taylor County Farm Bureau, 196 Ky. 75; Lang, Judge v. Commonwealth, 190 Ky. 29; Prowse v. Board of Education of Christian County, 134 Ky. 365; McDonald v. City of Louisville, 113 Ky. 425; Hopkins County v. St. Bernard Coal Co., 114 Ky. 153, and Fayette County v. Board of Education, 23 Ky. L. R. 389.
An examination of the opinions in those cases will clearly show that they do not reach the point involved in this one. Some of them dealt with a public purpose concerning which there was no constitutional expressed or necessarily implied mandate; while others, particularly the Fayette county case, involved questions con
Independently of any of the foregoing, we may further add that if section 220' of our Constitution permits the lógislature to impose the duties here involved upon a county where a military company may be organized, then it may mandatorily do so, as indeed was done under section 128, supra, of the 1916 Acts, with no escape by the county from the performance of the burden. Section 157 of the Constitution limits the rate of taxation of counties, except for school purposes, to fifty cents on each one hundred dollars of assessed property (with certain exceptions not here involved), and provides that no county shall become indebted in any manner or for any purpose in any one year exceeding the revenue provided for that year, which we have held in numerous cases to mean the revenue that might be collected by a levy of the maximum rate. There is no escape from the mandatory provisions of that section except by election as is provided by section 158 of that instrument. We know as a matter of history, that in most of the counties (but whether so or not they have the power to do so) the tax rate, for the raising of funds for the county treasury and for the purpose of discharging the governmental obligations of the county for other than school purposes, is now fixed at the maximum rate of fifty cents on each one hundred dollars ’ worth of assessable property; and further, that the revenue so produced is allotted by order of the fiscal court to the various county purposes. A county in that condition might have organized in it a military company if as many as fifty of its young men were sufficiently patriotic to do so, and the statute under consideration would immediately create an additional indebtedness exceeding the revenue provided for that year and requiring, in order to meet it, an additional levy beyond the constitutional limit. It surely was never contemplated by the framers of the Constitution that the operation of any of its sections should be brought into such an irreconciliable conflict, for in the instance we have supposed, what, may we ask, would be the duty of the fiscal authorities of the county? Should they abandon some of the public purposes to provide for which the maximum levy was made and which, in all probability, had already beén undertaken; or should they decline to meet the obligation imposed by the statute now under discussion? Each obliga
The rule is that a 'Constitution should be construed so as to harmonize its various sections and not so as to produce conflict between them. In the light of the authorities, supra, which are reenforced by the persuasive factors above enumerated, our conclusions are (1), that under our Constitution the state militia is essentially and exclusively a staté institution with no single county, including those in which any of its units may be organized, receiving therefrom any special local benefits, and that the purpose of the militia is in no sense a county one; (2), that to uphold, the contested provisions of the statute would destroy the equality of burdens for state purposes contrary to the theory of our Constitution, and create an unjustifiable discrimination unauthorized by it and supported by no corresponding benefits.
But it is insisted that because the application for the organiaztion of the company is required to be approved by the county judge, the county, through him, thereby obligates itself to perform the statutory requirements upon his endorsing his approval. But such a construction would substitute the county judge as a fiscal court, when section 144 of the Constitution provides who shall constitute it. Besides, under a former statute containing a similar provision, this court in the case of Haley, Adjutant General v. Cochran, 31 Ky. L. R. 505, 102 S. W. 852, held that “The provision as to the certificate of the county judge is merely directory, it being for the information of the Governor, and to enable him to judge whether or not the applicants should be enlisted as soldiers. ’ ’
It is furthermore contended that this court in effect sustained the constitutionality of a statute similar to the one here involved in the case of Fiscal Court of Jefferson
Upon the whole case we find no valid reason for disturbing the judgment, and it is accordingly affirmed.