Pearce v. Mason County

99 Ky. 357 | Ky. Ct. App. | 1896

JUDGE HAZELRIGG

deiweeed the opinion of the court.

The principal question involved here is whether the local act of March, 1886, entitled “An act to provide free turnpike roads in Mason county,” is yet in force.

The learned counsel for appellant rest their contention that it is no longer in force, not upon any provision, of the Constitution expressly repealing it, or upon legislation subsequently 'had, if its effect be determined by the ¡ordinary rules of statutory repeal, but the contention is that the policy óf the Constitution, which demands' the substitution of general laws for all local ones, is inconsistent with the act, and, therefore, when a general law on the subject of free turnpikes, such as may be found in the fragmentary and incomplete legislative enactments on that subject since the adoption of the Constitution, was adopted, it must be taken as a full and complete expression of legislative will on that behalf, an'd if even important omissions are observable in the general act, it is yet the whole law on the subject, so far as intended to be kept alive by the Legislature.

This principle may be admitted in a limited sense, but we are not prepared to accept the conclusions reached by counsel in the application of the principle. Surely if an, inspection of the alleged general act shows an utter ¡absence of legislative intent to affect the local act, by reason of mot embracing its leading and essential features, we are not required to distort the legislative meaning in furtherance merely of a supposed constitutional policy.

While in view of this policy the courts may declare the general act to be in substitution of local ones, without it appearing that a repeal would be effected by the ordinary rules of statutory construction, where one statute can be held to repeal another, yet certainly the courts must, in the nature of things, before so declaring, be satisfied that there is substantial identity of subject-matter .and purpose in the general and in the special acts, otherwise the conclusion must be reached that if the Legislature fails to enact a general law at all on a given subject, affected by local acts, it is the legislative intent that there shall be no law on that subject, and local acts with respect thereto must stand repealed. No such policy is apparent in the Constitution.

The intent and purpose of the Legislature, therefore, in adopting a general law is the proper .subject of inquiry,' and in this case we are satisfied, as we were in the O’Mahoney-Bullock case, 17 Ky. Law. Rep., 523, that it was no part.of the legislative purpose to enact a general law in lieu of all local ones on the subject here involved.

It is contended further, that the provisions of subsections 15 and 16 of section 59 of the Constitution, and of sections 171 and 181 of the same instrument, when taken together effect a repeal of the local act, not perhaps in themselves, but when quickened or made effective by the legislation subsequently had.

This argument is of kin to the former one, and at last depends for its efficacy upon the nature, character, and especially the comprehensiveness of the subsequent legislation — elements, as we have seen, which are wholly wanting in the subsequent acts referred to.

Section 59 prohibits the passage of local or special legislation regulating- or authorizing the levy or collection of taxes (subsection 15), or authorizing the opening, altering, maintaining or vacating roads, highways, streets, alleys, etc. (subsection 16.)

These provisions look altogether to future 'legislation, and manifestly do not affect, directly or indirectly, the laws already in force. The existing special legislation on the subjects named in the various subsections of section 59, with respect to which special acts are now prohibited, does not stand repealed by the mere force of such prohibition. The General Assembly may repeal any of these special acts by a special act for that purpose, or by substitution of comprehensive general laws, or, with respect to such o-f'them as may be inconsistent with those provisions of the Constitution which require legislation to enforce them, by the enactment of laws effectuating such constitutional provisions. Such .special acts as are 'inconsistent with .those provisions of the Constitution which do not require legislation to enforce them stand repealed.

So where, by a former special law, a city was authorized to incur an indebtedness beyond the constitutional limit, no question of contract right intervening, it has been held that the power could not be exercised under the special act (Beard, &c., v. City of Hopkinsville, 95 Ky., 239); and where the organic law requires the jurisdiction of justices’ courts to be equal and uniform throughout the State, it has been held that the special acts conferring jurisdiction were inconsistent with the constitutional provision, and stood repealed when the general law fixing the jurisdiction was enacted. (McTigue v. Commonwealth, 17 Ky. Law Rep., 1418); and, moreover, this would afford an illustration of a. repeal after six years had there been no general law passed.

The act in question here does not stand in any of these attitudes. Manifestly the provision requiring that “all taxes shall be levied and collected by general laws” looks to the future, as held in Long v. City of Louisville, 17 Ky. Law Rep., 253, and can not be held to affect the powers conferred in the pre-existing law. It seems to us that the schedule of the Constitution conclusively settles this question of repeal.

In order that no inconvenience might arise by reason of the alterations and amendments of the law by that instrument, it was deemed proper -to provide that the Constitution left in force all laws of the Commonwealth with which it was not inconsistent. This provision, instead of emphasizing the alleged policy of hostility to existing special legislation, expressly continued it in force unless inconsistent with the Constitution; and when it is admitted or becomes manifest that a local or special act is not inconsistent with the Constitution, and has not been repealed by a general law, the question is -settled and the law stands.

The positive mandate is against local and special legislation in the future, and, even if we concede that the Constitution breathes a spirit of hostility to past legislation of that class, it is expressly continued in force until repealed in the manner we have heretofore pointed out; nor does the fiscal court lack the power to carry out the provisions of the act in lieu of the old court of claims and levy. The provisions of the law creating such a court, and conferring authority on it, seem ample. (Section 144, Constitution; section 1840, Kentucky Statutes.)

We do not regard the amendment of 1890, which repealed the section requiring a vote to- put the law in force, as destroying the whole act. It was not so intended. The principal questions involved have been determined in O’Mahoney v. Bullock, heretofore cited.

Judgment affirmed.