139 Ky. 307 | Ky. Ct. App. | 1909
Opinion of the Court by
Reversing.
At its January term, 1901, the grand jury made to the Franldin circuit court the following report: “The courthouse is not a building such as the courts and officers of this county, with the increasing business of the courts and the county, are entitled to. This grand jury has no "recommendations to make in the matter, believing that the proper steps will'be taken to rebuild the old, or build a new one, when the courthouse fund is large enough. This, as'we understand,, is now about $8,500.00, with the probable increase of $3,000.00 when settlement is made with the sheriff.” At the January term, 1905, it made the following report: “The county courthouse is in most wretched condition, and now that a new State Capitol is to be erected here this county should make arrangements as soon as possible to do away with the old hat roost and'erect in its stead a sightly and commodious building, ."We desire to compliment the county judge and •magistrates and thank them for having begun the accumulation of a fund for that purpose. ’ ’ At the April term, 1905, .and' at the September term, 1906, it made a-similar report. At the January term, 1907, it made this reportr “This grand jury desires to call the attention, of the fiscal court of the 'county and citizens generally once more to the condition of the county
• Sections 157 and 158 of the Constitution as far as material to the question here before us are as follows:
' "The tax rate of.cities, towns, counties, taxing districts and other municipalities, for other than school purposes^ shall hot, at any time, exceed the following rates upon the value of the taxable property therein,*311 viz.. * * * For counties and taxing districts, fifty cents on the hundred dollars; unless it should be necessary to enable such * * * county or taxing district to pay the interest on, and provide a sinking fund for the extinction of indebtedness contracted before the adoption of the Constitution. No county, city, town, taxing district, or other municipality shall be authorized or permitted to become indebted, in any manner or for any purpose, to an amount exceeding in any year, the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose; and any indebtedness contracted in violation of this section shall be void.” Section 157.
“The respective cities, towns, counties, taxing districts and municipalities shall not be authorized or permitted to incur indebtedness to an amount, including existing indebtedness, in the aggregate exceeding the following named maximum percentages on the value of the taxable property therein, to be estimated by the assessment next before the last assessment previous to the incurring of the indebtedness, viz.: * * * Counties, taxing districts and other municipalities, two per centum; provided, any * * * county, taxing district or other municipality may contract an indebtedness in excess of such limitations when the same has-been authorized under laws in force prior to the adoption of this Constitution, or when necessary .for the completion of and payment for a public improvement undertaken and not completed • and paid for at -the time of the adoption of this Constitution: and provided further, if at the time of the adoption of this Constitution,- the aggregate indebtedness, bonded or floating, of any - city, town, county, taxing district, or other. municipality, including*312 that which it has been or máy be authorized to contract as herein provided, shall exceed the limit herein prescribed, then no such city or town shall be authorized or permitted to ipcrease its indebtedness in an amount exceeding two per centum, and no such county, taxing districts or other municipality, in an amount exceeding one per centum, in the aggregate upon the value of the taxable property therein, to be ascertained as herein provided, until the aggregate of its indebtedness shall have been reduced below the limit herein fixed, and thereafter it shall- not exceed the limit, unless in case of emergency, the public health or safety should so require.” Section 158.
These sections were construed in Knipper v. Covington, 109 Ky. 187, 58 S. W. 498. It was there held that each section provided a limitation on the power to create indebtedness; that neither of them is a grant of power, as no such grant was then necessary, the power to create indebtedness not being theretofore specially limited; that section 157 provides a barrier against any indebtedness for any purpose beyond the revenues for the year without a vote of the people; that section 158 imposes an additional limitation on the creation of indebtedness in the aggregate. The court there points out that under section 157 a municipality might vote a large debt on itself year after year, an evil that had proven' disastrous in former times, and therefore the framers of the Constitution placed a limit on aggregated indebtedness beyond which even the people themselves could not go, unless in cáse of emergency the public health or safety should so require. The record does not present a case of emergency where the public health or safety requires that an outlay should be made. The court
It is earnestly insisted that by virtue of an act of the Virginia Legislature passed in 1751, which it is said is still in force, it is the duty of the fiscal court “to maintain and keep in good repair within each respective county and at the charge of such county, one good and convenient courthouse, of stone, brick or timber.” It is also insisted that it was not the purpose of the Constitution to disable the fiscal court from providing for the courts and the people a good and sufficient courthouse. It was held in Hopkins County v. St. Bernard Coal Company, 114 Ky. 153, 70 S. W. 289, that it was not the purpose of the Constitution to disable the municipalities of the state from maintaining the public peace, and that, if the fiscal court had not levied a sufficient tax .to pay the necessary expenses of maintaining the public peace, it should make an additional levy for this purpose. The same idea was also expressed in Overall v. Madisonville, 125 Ky. 684, 102 S. W. 278, 12 L. R.. A. (N. S.) 433, but neither of these cases seem to have any relevancy here. The county has a courthouse which it has used for many years. The proposition is to incur an indebtedness for a new and more imposing building. The fund of $23,000 that is on hand would be entirely inadequate, and an indebtedness in excess
Judgment reversed and cause remanded to the circuit court, with instructions to overrule the demurrer to the response, and for further proceedings consistent herewith.