Ramsey v. City of Shelbyville,

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| Ky. Ct. App. | Dec 2, 1904

Lead Opinion

Opinion of the court by

JUDGE HOBSON

Reversing.

On March'20, 1902, the hoard of council of the city of Shelbyville enacted the following ordinance:

“Be it ordained by the board of council of the city of Shelbyville, Ky.;

“Section 1. That the board of council of the city of Shelbyville, Ky., for and. on behalf of said city accepts the proposition of Andrew Carnegie made to said city, namely r That he, Andrew Carnegie will give .$10,000.00 for the purpose of erecting a free public library building on the condition that a suitable site be provided, and the city of Shelbyville guarantees by ordinance the sum of $1,000.00 .annually for the support and maintenance thereof.

“Sec. 2. That'there be and now is appropriated to the support and maintenance of the Shelbyville Free Public *184Library the sum of $1,00(1.00 per annum; same to be paid in quarterly payments of $250.00 each to the treasurer as long; as said library is in existence to be used only for the purpose of maintaining and supporting said Free Public Library.

“Sec. 3. That there be levied annually on all the property in the city of Shelbyville subject to. taxation for city and county, a tax sufficient to provide each year for the aforesaid sum of $1,000.00.

“Sec. 4. This ordinance shall take effect and be in force on and after the first day of January, 1903.”

Appellants, who are taxpayers of the city, filed this suit to test the validity of the ordinance; and, the circuit court having' dismissed their petition, they appeal.

It is insisted for the city that, as no levy has been made under the ordinance, we have only a moot case, and there is no real issue before the court. While no levy has been made, the ordinance accepts on behalf of the city the proposition of Mr. Carnegie made to the city, and guaranties the sum of $1,000 annually for the support and maintenance of the library. Though the ordinance did not take effect until January 1, 1903, it created, if valid, an obligation-on the city; and, if it was beyond the power of the council to pass the ordinance, taxpayers of the city may maintain an action to have it declared invalid. Roberts v. Louisville, 92 Ky., 97, 13 R., 406, 17 S.W., 216" court="Ky. Ct. App." date_filed="1891-10-08" href="https://app.midpage.ai/document/roberts-v-city-of-louisville-7132548?utm_source=webapp" opinion_id="7132548">17 S. W., 216, 13 L. R. A., 844; Keith v. Johnson, 109 Ky., 491, 22 R., 947, 59 S.W., 487" court="Ky. Ct. App." date_filed="1900-11-28" href="https://app.midpage.ai/document/keith-v-johnson-7134543?utm_source=webapp" opinion_id="7134543">59 S. W., 487.

The authority of the council to legislate on the question is found in section 3490, subsection 22, Ky. St., 1903, which, among other things, confers on the board of council the following powers: “To erect a workhouse, poorhouse, station house and house of correction, or all or either of them, and to provide for the maintenance, regulation and govern*185ment thereof, and of the persons confined, therein, and to provide, maintain and regulate a public burial ground; to establish, maintain and regulate a local public library, and raise subscriptions, donations and gifts thereto.” It is insisted for appellants that th'e power to establish, maintain, and regulate a local public library is limited to the raising of subscriptions, donations, and gifts thereto, and that the council has no power to levy a tax for this purpose. But undoubtedly the council may levy a lax to erect a workhouse, station house, or house of correction, or to provide a public burial ground, and the power to maintain a local public library is as broad.as its power to do the other things. The power to raise subscriptions, donations, and gifts is simply an additional power, and these words are not limitation on the preceding part of the sentence. By the act of March 21, 1902 (see section 34S0a, Ky. St., 1903), the Legislature has further regulated the subject. But independently of that act and before its passage the council had power to. establish and maintain a local public library by taxation.

Section 184 of the Constitution, among other things, provides: “No sum shall be raised or collected for education other than in common schools until the question of taxation .is submitted to the legal voters, and the majority of the votes cast at said election shall be in favor of such taxation: provided, the tax now imposed for educational purposes, and for the endowment and maintenance of the Agricultural and Mechanical College, shall remain until changed by law.” It is urged that taxes may only be levied for public purposes, and, if the tax under the ordinance is for a public purpose, it must be because a public library is for an educational purpose, and therefore the ordinance is) void, becausie the question of taxation was not submitted to the legal voters. *186While a public library"-is in one sense an educational agency, a tax to maintain a public library "is not a tax for- education, ■within the meaning of section 184. That section refers to education other than in the common schools, and means a tax in aid of á school, as- shown by the concluding words above quoted. Board of Education of Covington v. Board of Trustees of Public Library, 68 S.W., 10" court="Ky. Ct. App." date_filed="1902-05-02" href="https://app.midpage.ai/document/board-of-education-v-board-of-trustees-of-public-library-7135018?utm_source=webapp" opinion_id="7135018">68 S. W., 10, 24 Ky. Law Rep., 98.

Section 157 of the Constitution, among other things, provides : “No county, city, town, taxing 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 suc-h year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose; and any indebtedness contracted in violation of this section shall be void.” It is insisted that the ordinance is invalid, under this section, because it creates an indebtedness exceeding the income and revenue provided fór each year. On the other hand, it is insisted that the ordinance creates! no indebtedness; that the library is maintained by the city, just as it maintains its fire department or police force; and that the cost of maintaining the library is simply a part of its annual running expenses. It is also insisted that it can not be now determined how long the library will run or remain in existence, and therefore it can not be told that any indebtedness beyond the first year’s levy will be incurred. If the ordinance is valid, it obligates the city to appropriate to the library $1,000 a year. To fail to do so would be bad faith to Mr. Carnegie, who is to pay $10,000 on, the faith of this "agreement of the city. The case, therefore, does not stand like the fire department or the police, for, as to these, each council may make such levy as, in its judgment, *187the best interests oí the city require. But as to the library, under the ordinance, the $1,000 must be raised each year, although the council, when it comes to make the levy, might find it entirely, unnecessary to levy so much. Nor do we see, that it can be maintained that the ordinance does not create an indebtedness, within the meaning of the Constitution. It creates an obligation beyond the revenue provided for the year by the act of the municipal authorities without the assent of the voters. The ordinance creates an obligation in advance upon the treasury of the city for each year of its existence after the year 1902. By this act of the council it proposes to bind all subsequent councils to levy a tax sufficient to ráise .$1,000 to support a library. If the council can do this, it can contract other obligations in advance, and thus entirely defeat the purpose of the constitutional provision, which is to require that the municipal .authorities shall not in one year create obligations beyond the revenues provided for that year. See Beard v. Hopkins-ville, 95 Ky., 239" court="Ky. Ct. App." date_filed="1894-01-23" href="https://app.midpage.ai/document/beard-v-city-of-hopkinsville-7132922?utm_source=webapp" opinion_id="7132922">95 Ky., 239, 15 R., 756, 24 S.W., 872" court="Ky. Ct. App." date_filed="1894-01-23" href="https://app.midpage.ai/document/beard-v-city-of-hopkinsville-7132922?utm_source=webapp" opinion_id="7132922">24 S. W., 872, 23 L. R. A., 402, 44 Am. St. Rep., 222; Richmond v. Powell, 27 S.W., 1" court="Ky. Ct. App." date_filed="1894-06-14" href="https://app.midpage.ai/document/city-council-v-powell-7133547?utm_source=webapp" opinion_id="7133547">27 S. W., 1, 16 Ky. Law Rep., 174; Shelbyville v. Shelbyville Water Company, 27 S. W., 85, 16 Ky. Law Rep., 176. The language of the Constitution is very broad — -“become indebted in any manner or for any purpose.” An obligation payable in future is no lessi a debt, within the meaning of this provision, ¡lian if payable at once. An obligation to pay which may be defeated by the happening of some contingency — as, in this case, the library ceases to exist — is certainly an obligation ■until the contingency happens. Such an obligation must fall within thewords “indebted in any manner or for any purpose.” The contingency upon which the city is to be released from the obligation may never happen, and it is plain that the contemplation of the parties is a permanent public library, to be *188maintained permanently by taxation. If such an obligation is not within the interdiction of the constitutional provision, it is hard to understand what practical effect would be given to it, for there are few obligations that might not be so framed as thus to avoid its operation.

The’ city council may submit the matter to a vote of the people, and, with the assent of the voters as¡ provided in the Constitution, may incur the obligation and levy a tax to maintain the library, but the present ordinance is void.

Judgment reversed and cause remanded for a judgment as herein indicated.

Rehearing

Response to petition for rehearing by

Judge Barter:

There is nothing in the opinion to suggest the illegality of any appropriation made by the council of Shelbyville out of the annual revenue for the benefit of the public library. On the contrary, so far as this record shows, and as we are at present advised, such action, if any, was entirely valid.