Herd v. City of Middlesboro

• Decision Date: 08 December 1936
• Parties: HERD v. CITY OF MIDDLESBORO et al.
• Court: Kentucky Court of Appeals

99 S.W.2d 458

266 Ky. 488

HERD v. CITY OF MIDDLESBORO et al.

Court of Appeals of Kentucky

December 8, 1936

Appeal from Circuit Court, Bell County.

Suit by Charles E. Herd against the City of Middlesboro, Kentucky and others. Judgment for defendants, and plaintiff appeals.

Reversed in part, and affirmed in part.

Robert J. Watson, of Middlesboro, for appellant.

R. L Maddox, of Middlesboro, for appellees.

REES Justice.

Middlesboro is a city of the third class, operating under the commission form of government. On June 30, 1936, its board of commissioners adopted an ordinance levying taxes for the fiscal year 1936-1937. The levy amounted to $2.95 on the $100, of which amount $1.29 was for general school purposes and 19 cents was to pay the interest on and create a sinking fund to pay the principal of certain outstanding school bonds. Of the balance, 39 cents was levied to pay the interest on and create a sinking fund to pay the principal of bonds issued prior to the adoption of the present Constitution, and of bonds authorized by a vote of the people; 8 cents to pay the interest on and create a sinking fund for the payment of $60,000 of bonds issued October 1,1929, to fund a floating indebtedness of the city; 58 cents for general municipal purposes; 2 cents for airport purposes and 40 cents for flood prevention purposes. On July 1, 1936, the ordinance was amended by eliminating the 8 cents' levy for the $60,000 bond issue, and increasing the levy for the other bond issues to 47' cents, thus leaving the aggregate levy at $2.95. The appellant, Charles E. Herd, a resident and taxpayer of the city of Middlesboro, brought this action against the city and its board of commissioners to have declared void the levy of 40 cents for flood control purposes, and to compel the board of commissioners to levy a tax of at least 8 cents to pay the interest on and create a sinking fund for the payment of the principal of the bonds, amounting to $60,000, issued October 1, 1929, to fund a floating indebtedness of the city. The circuit court deniedthe injunctive relief sought by the plaintiff and dismissed his petition, and he has appealed.

The pleadings and proof fail to disclose just how the debts of the city, represented by various bond issues, were incurred, except the $60,000 debt which was funded October 1, 1929. This was a floating indebtedness of the city, concededly valid. It appears that a part of the remaining bonded indebtedness was contracted before the adoption of the present Constitution, and a part was authorized by a vote of the people subsequent to the adoption of the Constitution.

Middlesboro has a population of more than 10,000 and less than 15,000, and, consequently, under section 157 of the Constitution, its tax rate cannot exceed $1 on the $100 for other than school purposes, unless it shall be necessary to enable it to pay the interest on and provide a sinking fund for the extinction of indebtedness contracted before the adoption of the Constitution. The appellant, however, only attacks the tax ordinance in so far as it attempts to levy 40 cents for flood control purposes, and we shall limit our consideration of the validity of the ordinance to this question.

Subsequent to July 1, 1936, the board of commissioners repealed so much of the ordinance as levied 40 cents for flood control purposes, and amended it by levying $1 on the $100 of taxable property for general municipal purposes, leaving the total levy at the same amount as the levy in the original ordinance. Appellees conceded that they proposed to use a part of the general fund for flood control purposes. Appellant insists that the necessary governmental expenses of the city will consume the entire amount realized from the levy of $1 for general municipal purposes, and that any sum expended for flood control purposes will, to that extent, exceed the revenue of the current fiscal year, and, furthermore, that the city is without authority, under the Constitution and statutes, to levy and collect taxes for such a purpose.

It appears that Yellow creek, which flows through Middlesboro, is subject to frequent overflows, and that during recent years there have been numerous destructive floods causing heavy damage to property in the city. The federal government has proposed to expend a large sum of money in an effort to prevent these recurring floods by constructing canals to drain off the water more rapidly, and by constructing a dam across Yellow creek just above the city to impound the water during periods of heavy rainful. The expenditure of this money by the government is made dependent upon the procurement by the city of rights of way, which it is estimated will cost between $40,000 and $60,000. The question presented is: Does the city have authority to engage in a project of this kind and to use a part of its general fund for such a purpose?

A municipal corporation has only such powers as are expressly granted to it by its charter, or which are necessarily implied or incident to those so granted, or which are...