McInerney v. Huelefeld

116 Ky. 28 | Ky. Ct. App. | 1903

Opinion op the court by

CHIEF JUSTICE BURNAM

Reversing-

This action was instituted by the appellee, H. B. Huelefeld, a citizen and taxpayer of tbe city of Covington, against the appellant, M. D. Mclnerney, sheriff of Kenton county, to enjoin the collection of a tax of thirty-eight cents on each $100 of property in the county, which was levied by the fiscal court of Kenton county, composed of the connty judge and seven magistrates, five of whom reside outside of the city of Covington, and two within the city limits, at the regular meeting of the fiscal court for that purpose in April, 1902, upon three grounds:

First, because the commissioners appointed pursuant to section 1079 of the Kentucky Statutes of 1899, to divide the county into justices’ districts, only allotted to the city two magistrates, while five were allotted to the county outside of the city, notwithstanding the fact that the city greatly exceeded the rest of the county both in wealth and population. It appears from the record that in 1892 the county judge of Kenton county appointed three commissioners to divide the county into magisterial districts, and that they performed this duty in strict conformity with the provisions of section’ 1080 of the Kentucky Statutes of 1899, and that no exceptions were made to the division as made by them, and their report was regularly confirmed by the judgment of the Kenton county court at its January term, 1893, and so far as this record shows this apportionment has never been 'called in question in any way. If, as contended, this apportionment of the county into magisterial districts was unjust to the city of Covington, they could have filed exceptions to the confirmation of the report, and, in addition to this remedy, section 1082 of the statutes provides that the county may be reapportioned into justices’ districts at any term of the court in the same way four years after the first apportionment. As the city of Covington has not complained of this apportionment in the manner pointed out by the statute, a court of equity can not regard it as a sound contention at the suit of' an individual citizen to enjoin the collection of the tax assessed against him.

The next ground complained of is that the levy made by the fiscal court is in excess of the requirement of the county, and was not itemized in the manner required by law. Section 1839 of the statutes, which was passed in conformity with the requirements of section 157 of the Constitution, provides: “The fiscal courts shall have jurisdiction to levy each year for county purposes an ad valorem tax on all property subject to taxation within the county, whether belonging to natural persons or corporations, companies or associations, not to exceed fifty cents on each $100.00 in value thereof as assessed for State purposes.” The tax complained of in this action is only for 38 cents on each $100 in value of taxable property in the county, and is therefore clearly within the limit. The law is well settled that, so long as municipal governments make levies of taxes within the limits prescribed by the Constitution, courts of equity will not undertake to inquire into the necessity of the levy a,t the hands of an individual taxpayer. See Mayfield Woolen Mills, etc. v. City of Mayfield, 111 Ky., 172, 22 R., 1676, 61 S. W., 43, where the question was recently and thoroughly considered by this court, and the conclusion there reached is supported by the overwhelming weight of authority on the question. See High on Injunctions (2d’Ed.), section 544; Cooley on Taxation (2d Ed.), p. 372. Nor does the record sustain this contention of appellee as to the alleged excessive levy. And it does not bear out appellee's contention that the fiscal court did not specify with sufficient distinctness the purpose for which the levy was made. The resolution of the fiscal court on thW point recites that 3S cents was apportioned as. follows: 3 cents for the purpose of creating a sinking fund with which to purchase a poor farm and erect suitable buildings thereon, 10 cents for the maintenance and repair of the public roads and bridges of the county, and 25 cents to defray the general county expenses. The language of the resolution is in substantial compliance with the provisions of the State revenue act, which provides that an annual tax of 50 cents on each $100 of value on all property shall be levied for the following purposes: “Twenty-two and one-half cents for the ordinary expenses of the government; twenty-two cents for the schools; five cents for the sinking fund, and one-half of one cent for the A. and M. College.” In our. opinion, the levy was sufficiently definite. ,

The third and most'important ground upon which appellee assails the levy is that the city of Covington is by law separated from the balance of the county of Kenton for governmental purposes, and that in consequence thereof the fiscal court of the county had no legal power or authority to levy a tax for county purposes upon the property of citizens living within the city of Covington; and incidentally to this contention it is insisted by appellee that the decision rendered by this court in the case of Richardson v. Boske, Sheriff, etc., 111 Ky., 893, 23 R., 1209, 64 S. W., 919, should be overruled. In that case Richardson, a citizen of Kenton county, residing outside of the corporate limits of the city of Covington, sought to enjoin Boske, the then sheriff, from collecting a tax which the magistrates of the county residing outside of Covington, assuming to be the fiscal court of the county, had levied on property located in the county outside of-the city of Covington for the year 1899, for county purposes, on the.ground that the magistrates residing in the city of Covington" did not act as members of the fiscal court, which made the levy, and that the tax was therefore levied by an illegally constituted fiscal court. The sheriff resisted the granting of the injunction upon the ground that the city of Covington was separated from the residue of the county for governmental purposes, and was therefore not liable for any paid of the tax sought to be enjoined, and that the magistrates residing within the city limits did not constitute any part of the fiscal court, and to support this contention relied upon certain special acts of the General Assembly running through a series of years, which exempted the citizens of Covington from any charge for maintaining the public roads of the county outside the city, and for other expenses for the maintenance and improvement of the county outside of the city, and are the identical acts relied on to support the contention of appellee in this proceeding. In that case it was not necessary for the court to decide whether the separation of the city of Covington from the residue of the county for governmental "purpose actually existed by virtue of these acts or not, but the court did decide that in so far as they were inconsistent with or repugnant to the act of October, 1892, which is embraced in sections 1833 to 1851, inclusive, of the statutes, which define and prescribe the duties of fiscal courts, they were repealed by the concluding section of that act,.and that the fiscal court consisted of the county judge and seven magistrates, and that as such they had the jurisdiction to appropriate county funds for all the purposes defined in section 1840 of the Kentucky Statutes of 1899, and to levy a sufficient tax, within the statutory limit, upon all the property within the entire county, whether located inside or outside of the city of Covington, for this purpose. The decision in the case of Richardson v. Boske, Sheriff, has been referred to and approved by this court in quite a number of cases which have since been decided. See Campbell County v. Newport & Cincinnati Bridge Co., 22 R., 2056, 66 S. W., 526; City of Covington v. Highlands District, 113 Ky., —, 24 R., 433, 68 S. W., 669; Commonwealth v. Porter, 113 Ky., 575, 24 R., 364, 68 S. W., 621, and Johnson v. Boske, 23 R., 1845, 66 S. W., 400. And that case followed the rúle which had been previously announced in Campbell County v. Commissioners, etc., 19 R., 860, 42 S. W., 111, and Joyes v. Jefferson Fiscal Court, 106 Ky., 615, 21 R., 199, 51 S. W., 435. And we still adhere to the law as therein announced. In addition we will say that there is nothing in these various special acts which sustain the contention that the General Assembly intended thereby to separate the city of Covington from the county of Kenton for governmental purposes. They are in no sense contracts between the city and State. The General Assembly always had the power to repeal them when they saw fit, and did so by the general act of October, 1892, which was passed in conformity with the mandate of the Constitution requiring uniformity and prohibiting special legislation. The city of Covington maintains its separate municipal government like every other city in the Commonwealth, and in addition thereto permits the use of its city courthouse by the circuit court while it is holding its session within the city. But there is nothing to support the contention of a separation between the city and county for governmental purposes. On the contrary, the county government is administered by county officers* who are elected by the entire county, and whose jurisdiction extends over the entire county, including the city of Covington.

The General Assembly has plenary power to create counties, and it can not be doubted that, if they had intended to establish a separate county government in the city of Covington, they would have done so in a clear, explicit and unequivocal act passed for that purpose. In our opinion, the contention rests upon no substantial basis and can not be maintained.

For reasons indicated, the judgment is reversed and cause remanded, with instructions to dissolve the injunction granted by the circuit judge, and for an order dismissing plaintiff’s petition, with costs, and for such other proceedings as may be necessary to carry out the views indicated in this opinion.

Petition for rehearing by appellee overruled.