212 S.W.2d 122 | Ky. Ct. App. | 1948
Reversing.
The question is whether Jefferson County must pay to the appellant sewer service charges for the court house, armory and other county buildings. The circuit court held it need not.
The statute empowers the Metropolitan Sewer District, "To fix and collect sewer rates, rentals, and other charges, for service rendered by the facilities of the district." KRS
"Upon taking and assuming control of such existing *656 sewer and drainage system the district is authorized to establish a schedule of rates, rentals, and charges, to be collected from all the real property served by the facilities of such district, and to prescribe the manner in which and time at which such rates, rentals, and charges are to be paid, and to change such schedule from time to time as the district may deem necessary, advisable or expedient."
It is to be observed there is no express exemption of any class of property or users of the sewer system.
The County claims exemption under a general principle that no burden may be imposed by one unit of government upon another without specific statutory authority or consent. It also claims the County has acquired by prescription the right to the free use of the city sewers, since it has been using them without charge for more than a century. Another defense is that there is unjust and unconstitutional discrimination against the County because the City of Louisville and the independent city school district are not required to pay sewer charges.
The District contends that since these charges are not taxes but are rents for the privilege of using the facilities, the rule as to the denial of power of one government unit to impose a burden upon another has no application, and that this power is in fact contained in the express language of the statute. It denies an easement by prescription. The District claims it to be a valid and proper exercise of power to exempt the City and its Board of Education from these charges, since the City owns the system.
There is an irreconcilable conflict in the authorities generally as to the conditions under which one government or governmental agency may impose burdens of taxation or special or local assessments, which are of a kindred nature, upon public property owned by another government or agency. The extremes are, on the one hand, that there must be positive statutory power to do so; and, on the other, that such authority is deemed to exist unless there is a specific exclusion. The presence or absence of statutory authorization, various diverse conditions and other factors add to the confusion. See *657
48 Am. Jur., Special and Local Assessments, Secs. 84-89; Annotation, "Public Property as subject to special assessment for improvement." 90 A.L.R. 1137. On the general proposition, no definite legislative policy is discoverable in the Kentucky Statutes, for the several analogous municipal corporations and agencies and their respective operations or functions differ one from another in this respect. But we need not in this case tread our way through this welter of law, nor even consider our own cases on the point. See, for comparison, Mt. Sterling v. Montgomery County,
Considering the constantly expanding use of this scheme for maintaining municipal sewer systems, the absence of an opinion directly dealing with the question involved in this case, namely, the right to impose sewer service charges upon a governmental unit or agency, is surprising. In Francis v. City of Bowling Green,
The theory of an optional use of the sewers and a voluntary payment of the charges therefor does not strongly appeal to the reason. In reality, there is no choice. The use of sewers is indispensable, both as a matter of convenience and of avoiding a nuisance. There is, obviously, no suggestion in this case that Jefferson County can possibly do without the sewers which the District is maintaining.
The scope of power delegated by the Legislature to the District in this particular is all embracing. It is authorized not only to fix or establish a schedule of rates and charges, but to collect them "from all the real property served by the facilities." KRS
We have two precedents for this construction of the statutory provision. Both are on much narrower questions and one is very extreme. The statutes impose a State excise gallonage tax on all gasoline imported or sold for use within the state by "any person." They likewise impose heavy penalties for delinquency in payment. Since there is no exemption of any person or corporation, either public or private, the statute was construed to require the payment of the tax by a county board of education (which is strictly an arm of the State itself) upon gasoline used in school busses. Not only the tax but the penalties and interest were held to have been properly retained by the Commissioner of Finance from state school funds allotted the board of education. Board of Education of Kenton County v. Talbott, Commissioner of Finance,
The second point raised by the appellant is without merit. The same long use of the city's sewers by persons and private corporations without direct or specific payment therefor gave them no prescriptive right to continue without payment under this statute. This question was settled in Veail v. Louisville Jefferson County Metropolitan Sewer District, supra,
We need not decide whether the exemption by the District of property of the City from sewer service charges is authorized or is under a proper classification. See Louisville Jefferson County Metropolitan Sewer District v. Joseph E. Seagram Sons,
The judgment is reversed for consistent proceedings.