Barrow v. Bradley

• Decision Date: 28 January 1921
• Citation: 190 Ky. 480,227 S.W. 1016
• Parties: BARROW ET AL. v. BRADLEY, MAYOR, ET AL.
• Court: Kentucky Court of Appeals

227 S.W. 1016

190 Ky. 480

BARROW ET AL. v. BRADLEY, MAYOR, ET AL.

Court of Appeals of Kentucky.

January 28, 1921

Appeal from Circuit Court, Fayette County.

Action by David Barrow and others against Thomas C. Bradley, Mayor and others. Judgment of dismissal, and plaintiffs appeal. Affirmed.

Ed. C O'Rear and Wm. L. Wallace, both of Frankfort, for appellants.

William H. Townsend, Harry B. Miller, and James A. Wilmore, all of Lexington, for appellees.

CLARKE J.

Lexington is a city of the second class and has adopted the commission form of government, under which all legislative functions of the city are vested in the mayor and four commissioners who now are appellees and were defendants below.

The plaintiffs, now appellants, who are citizens and taxpayers of the city, instituted this action for themselves and on behalf of all other citizens and taxpayers, for mandamus to compel defendants to issue and sell $75,000 of city bonds and to apply the proceeds to the erection of a building in Lexington upon the grounds of the University of Kentucky as a memorial to the citizens of Lexington and Kentucky who gave their lives in defense of the nation in the late war with Germany and her allies.

A general demurrer to the petition having been sustained, same was dismissed upon plaintiff's refusal to plead further and they have appealed.

The petition set out in detail the enactment, in strict accord with the prescribed procedure, of ordinances declaring it to be a matter of public welfare and municipal concern that the proposed memorial be erected, authorizing an indebtedness of $75,000, and the issuance of bonds in that amount for the purpose and providing for the submission of the proposed indebtedness to the legal voters of the city; that at an election regularly held for the purpose and properly certified the indebtedness was authorized by more than a two-thirds majority; and that the same when so authorized does not exceed the constitutional limitation.

The first, if not the only, question involved therefore is whether the city in any event had the power to appropriate funds or incur an indebtedness for the purpose proposed.

That the power of a city to expend or contract to pay public revenues is limited by the power to tax is too obvious for argument, as is also the proposition that the power to tax is a sovereign power, legislative in character. Generally all such powers are conferred upon and may be exercised only by the legislative branch of the government, except as otherwise provided by the Constitution. Section 171 of our Constitution declares that "taxes shall be levied and collected for public purposes only." Unless therefore the proposed indebtedness is for a public purpose it is prohibited by the Constitution and would be invalid even if it had been proposed by the General Assembly of the Commonwealth.

But it is so well settled now that the reasonable use of public money for memorial buildings, monuments, and other public ornaments, designed merely to inspire sentiments of patriotism or of respect for the memory of worthy individuals, is for a public purpose that it hardly seems necessary to devote time to a discussion of this branch of the case. Kingman v. Brockton, 153 Mass. 255, 26 N.E. 998, 11 L. R. A. 123 and note; 19 R. C. L. 722; Judson on Taxation, § 349.

That this precise question has never before reached this court is significant in view of the fact that upon the statute books and throughout the state are many evidences of such expenditures by the General Assembly of the Commonwealth, and we have no doubt that such expenditures are for a public purpose and valid when so authorized.

And while as a general proposition the legislative branch of the state cannot delegate sovereign powers confided to it, the power to create municipal corporations for purposes of local self-government by necessary implication as is uniformly held carries with it the power to confer upon such municipalities, as local governmental agencies, the power to tax. When therefore the power to create municipalities is vested in the state Legislature, the power is implied if not expressed to confer and define local legislative power, and is practically unlimited in the absence of constitutional restrictions.

By our present Constitution, however, in section 156 it is provided that the cities and towns of the commonwealth for the purposes of their organization and government shall be divided into six classes, and that--

"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."

And the General Assembly is required to assign cities and towns to the classes to which they respectively belong, to change assignments, provide by general law how towns may be organized, and to enact laws for the government of such towns until assigned to one or the other of the six named classes.

It is apparent therefore that our state Legislature has express power to delegate to cities and towns all powers needful for local self-government, and it cannot be doubted that when, pursuant to this provision of the Constitution, the General Assembly has provided by general laws for the organization and defined the powers of cities of these several classes, and assigned Lexington to the second class, its powers are limited as thus defined.

Yet it is asserted upon authority of 8 Cyc. 779; Lexington v. Thompson, 113 Ky. 540, 68 S.W. 477, 24 Ky. Law Rep. 384, 57 L. R. A. 775, 101 Am. St. Rep. 361; Western Son. Fund Soc. v. City of Philadelphia, 31 Pa. 183, 172 Am. Dec. 730; McDonald v. Louisville, 113 Ky. 425, 68 S.W. 413, 24 Ky. Law Rep. 271; Overall v. Madisonville, 125 Ky. 684, 102 S.W. 278, 31 Ky. Law Rep. 278, 12 L. R. A. (N. S.) 433; and Ex parte City of Paducah, 125 Ky. 510, 101 S.W. 898, 31 Ky. Law Rep. 170--that the city of Lexington has the inherent power to issue the proposed bonds.

But an examination of these authorities discloses the fact that they deal with an entirely different phase of municipal affairs, viz., the capacities and powers of a municipality not as a local state agency but rather as a private corporation, and of the right of the Legislature to interfere in the local management of such affairs of a private nature as theretofore have been conferred expressly or impliedly upon the city as a franchise by the Legislature.

Obviously such authorities give no support to the contention that a city has inherent power to levy taxes for public purposes, as here attempted and which manifestly it can do only in the exercise of its public functions delegated to it as a local state agency by the Legislature.

Moreover section 162 of the Constitution declares that--

"No county, city, town or other municipality shall ever be authorized or permitted to pay any claim created against it, under any agreement or contract made without express authority of law, and all such unauthorized agreements or contracts shall be null and void."

Consequently the city has no inherent power to issue the proposed bonds, and they are void unless the "express authority of law" therefor can be found in the charter of cities of the second class, which is the only express authority of law given the city of Lexington to levy taxes for public purposes.

Assuming that the term "express authority of law," as thus used in the Constitution, is to be construed as meaning not only that which is expressly stated but also that which is necessarily included or implied from what is expressly said as we apprehend but do not...