109 Ky. 187 | Ky. Ct. App. | 1900
Opinion oe the court by
Reversing.
It is contended on this appeal that, if the public health or safety required it, a city, notwithstanding the inhibitory language of section 157 of the Constitution, may become indebted to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of the voters. So much of that section as is pertinent reads as follow®;
“Section 157. ... No county, city, town, taxing dis-ing 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
Authority for the nullification of this section is sought to be found in section 158 of the Constitution, which reads as follows:
“Section 158. 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 in curring of the indebtedness, viz.: Cities of! ¡the first and second classes, and of the third class having a population exceeding fifteen thousand, ten per centum; cities of the third class having a population of' less than fifteen thousand, and cities and towns of the fourth class, five per centum; cities and towns of the fifth and sixth classes, three per centum; and counties, taxing districts and other municipalities, two per centum; provided, any city, town, counity, 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 any payment for a public improvement undertaken and not completed and paid for at the time of the adoption of the Constitution; and provided, further, if, at the timo1 of the adoption of this Constitution, the aggregate indebtedness, bonded or floating, of any city,
It appears that the limit of the aggregate indebtedness of the appellee city, as prescribed in section 158, has not been reached, such indebtedness being yet within ten per centum of the taxable property, and this limit will not be exceeded 'even if the bonds sought to be validated be issued. As the proviso in section 158, permitting an increase beyond the limit fixed in that section should the public health or safety so require, ha,s in express terms reference solely to instances where this limit has been reached, and an emergency requires that there be an increase beyond this limit, we can not conceive how the section can possibly have any application to the present case.
The first section in plain and unambiguous language, provides a barrier against any indebtedness for any purpose, without a vote, beyond the revenues of the year. The second section is not a grant of power beyond this, but im
From the sections quoted, it would seem clear that, if a city is overtaken with the necessity of increasing its indebtedness in any year beyond its revenues for that year, it may do so by obtaining the assent of the voters, as provided in section 157; and it matters not for what “purpose” the proposed indebtedness is needed, whether because of the public health or safety or what not, nor in what “manner” it is sought to be imposed. A vote is demanded by the express terms of the law whenever an indebtedness beyond revenues is to be created. And, if !he indebtedness is attempted to be created without the vote, the Constitution pronounces the contract creating it void. It can not be enforced, nor can the city ever be authorized to assume such indebtedness. If, therefore, an emergency in any city arises requiring such an increase, “the assent of two-thirds of the voters therof voting at an election to be held for that purpose” must be obtained before the increase can be made.
This requirement is without regard to the question of aggregate indebtedness. A city may be wholly out of debt, still the requirement of section 157 is that no indebtedness for any purpose shall be created in any manner which is in excess of the annual revenues, except by the assent of the people. Again, a city may be in debt even beyond the limits fixed in section 158, still the requirement is the same — the city must live within its means, unless the
Each section provides1 a limitation on -the power to create indebtedness. Neither of them is a grant of power. No such grant was then necessary, for the power to create indebtedness was therefore not specifically limited. When an emergency arises such as is named in section 158, then certain limits fixed in that section are removed. But section 157 is still in force, and, while the emergency indebtedness may be incurred, the provisions of-section 157 still provide how it may be incurred; that is, by a vote of the people. If such indebtedness is in excess of the revenues for the year, aud without that vote, if there is no in
When considering the indebtedness which the city is authorized to create by a vote of the people, as provided in section 157, we are not to disregard the -- vided for in section 158. And while the to create an unlimited indebtedness, so far as section 157 is concerned, it does not follow that we are to shut our eyes to any further limitation elsewhere provided. We must read section 158 into and along with section 157 to ■see how far and to what extent the people may vote a debt on themselves. So, in reading section 158, while we find certain limits beyond which, for ordinary purposes, the city can not go, yet for certain purposes we find, in effect, no limits at all. In other words, there is no limit or restriction of the amount to which a city may become indebted under certain emergencies. Practically, as to an indebtedness for certain purposes, that section (158) is abolished. The way is entirely open for the imposition of any amount of indebtedness. But section 157 is to be read into and along with section 158, and the manner of creating an indebtedness “for any purpose” must be as prescribed in section 157.
The puipose of the indebtedness in the case at bar gets us from under the burdens and limitations of section 158, but the manner of creating any indebtedness beyond the revenues must be observed, as presented elsewhere in the Constitution, viz., in section 157. This is the only way to give force and effect to the instrument as a whole. The plea that.this construction may result in disaster to a city by reason of some great emergency, which" could not be