113 Ky. 425 | Ky. Ct. App. | 1902
Opinion op ti-ie court by
Appirming.
This action was brought by the appellant, E. L. McDonald, a citizen and taxpayer of the city of Louisville, for himself and all others similarly situated, to obtain an injunction agaiust the appellee, enjoining the collection of all ad valorem taxes levied by the general council ifbr the fiscal year ending August 31, 1902, upon the ground that they failed and refused to levy a “deficit tax” as required by law. And in an amended petition they seek the same relief on the ground that the general council had tailed or refused to levy a tax as required by the act of March 16, 1890, to create a pension fund for disabled firemen, their widows, dependent children, fathers, and mothers. A general demurrer was sustained ta both the original and amended petitions, and each of them dismissed, and this appeal is to reverse that judgment.
The decision of this case involves the construction of sections 156, 180 and 181 of the Constitution. Section 156 is as follows: “The cities and. towns of this Commonwealth, for the purposes of their organization and government, shall be divided into six classes. The' organization and powers of each class shall be defined and provided for by general laws, so that all municipal corporations of the same class shall possess the same powers and be subject to the same restrictions.” Section 180 provides: “The General Assembly may authorize the counties, cities or towns To levy a poll-tax not exceeding one dollar and fifty cents per head.' Every act enacted by the General Assembly
■ The general council is not required to levy a deficit tax unless there is an actual deficit in the revenues for the year, and if we give a construction to both sections 2984 and 2982, so as to make both of them effective, we mugt (onclude that the General Assembly did not intend to require the levy of a deficit tax whether there was any necessity for it or not, but it was intended to'leave the levying of this particular tax to the sound discretion of the general council, who necessarily knew whether such deficit in fact existed or not. It is not alleged in either the original .or amended petitions that there was any necessity for the levy of a deficit tax for the fiscal years ending the 31st of August. 1902, and it must therefore be assumed that
The purpose of the amendment to appellees’ charter approved March 1G, 1900 (Acts 1900, c. 8), as expressed in, the title, was for the “better government, administration, disposition and discipline of the fire department; and to create a perpetual pension fund for disabled firemen, tlieir widows and dependent children, fathers and mothers; and to create a perpetual board of trustees for the management and conduct thereof, and to pension members thereof after service, of a term of years.” The general administration and government of the fire department are imposed upon the board of public safety. Section 16 of the1 act provides that “there shall be organized in connection with said department a board to be known as the board of trustees of the firemen’s pension fund, which shall be composed of the chairman or president of the board of public safety, the chief of firemen, the city attorney, the comptroller and city treasurer.” And section 17 provides: “There shall be levied and set apart by the general council of cities of the first class each year one-lialf of one per centum of each one hundred dollars of value of the taxable property in said cities for said year as a fund for the pensioning of crippled and disabled members of the fire department, and of the widows and dependent children under the age of sixteen years, and dependent fathers and mothers of deceased members of the fire departmnt of said cities. All moneys received under this tax levy .shall constitute and be kept as a fund to be called the firemen’s
Questions as to the power of the Legislature to impose burdens upon municipalities without their consent have been a prolific source of litigation, and- the- general trend of the decisions is to the effect that the legislative power of taxation is absolute, except as limited by restriction of the State and Federal Constitutions. In the note to the case of State v. Williams, which was decided by the Connecticut supreme court of errors, and is found in 48 L. R. A., 465 (s. c., 35 Atl. 24, 421), the editor says: “Con
Judgment affirmed.