Bloxton v. State Highway Commission

• Citation: 225 Ky. 324
• Parties: Bloxton v. State Highway Commission, et al.
• Decision Date: 27 June 1928
• Court: United States State Supreme Court (Kentucky)

Page 324

225 Ky. 324

Bloxton v. State Highway Commission, et al.

Court of Appeals of Kentucky.

Decided June 27, 1928.

1. Constitutional Law. — Acts 1928 session, entitled "The State Highway Toll Bridge Act," held not to violate Constitution, sec. 19, providing that no law shall be enacted impairing the obligations of contracts, in that the act authorizes the condemnation of bridges that are now operated under franchises, since under the act property may only be condemned for public purposes upon paying fair compensation therefor, and a franchise is similar to other property within section 242, authorizing taking of property for public purposes when just compensation is paid.

2. Statutes. — Act entitled "The State Highway Toll Bridge Act," passed at 1928 legislative session, providing that highway commission may condemn any bridge or property or privileges necessary, and that compensation therefor shall be paid as provided in Ky. Stats., secs. 835-840, for condemnation of land by railroad, held not to violate Constitution, sec. 51, providing that no act shall be amended or provisions thereof extended or conferred by reference to its title only.

3. Eminent Domain. — State Highway Toll Bridge Act, passed at 1928 Session of Legislature, authorizing highway commission to condemn property necessary and requiring compensation to be paid therefor, to be ascertained as provided in Ky. Stats., secs. 835-840, held not invalid because such statutes provide a method for arriving at value of only the physical property, since purpose of act is only to provide a method of procedure.

4. Eminent Domain. — When property is condemned, its value can be fixed in view of the uses to which the property is applied or may reasonably be applied.

5. Eminent Domain. — State Highway Toll Bridge Act, passed at 1928 legislative session and providing for condemnation of property necessary, must be construed in light of Constitution, sec. 242, providing private property cannot be taken without just compensation.

6. Constitutional Law. — State Highway Toll Bridge Act, passed at 1928 legislative session, held not violative of Constitution, secs. 27, 28, in that it attempts to delegate legislative powers to the state highway commission by authorizing the commission to fix the rate of toll for each bridge, terms and maturity of bonds, and terms upon which bids may be made; such matters being administrative and not legislative.

7. Constitutional Law. — While legislative powers may not be conferred upon any executive board, administrative powers may be conferred upon a board without violation of Constitution, secs. 27, 28, prohibiting separation of the legislative, executive, and judicial departments.

8. States. — State Highway Toll Bridge Act, passed at 1928 legislative session, held not violative of Constitution, secs. 49, 50, prohibiting General Assembly from contracting debts in excess of $500,000 except on vote of people, in view that act did not authorize a debt to be contracted by commonwealth or create any indebtedness against it, since only the bridges acquired under the act are affected by it.

9. Taxation. — State Highway Toll Bridge Act, passed at 1928 legislative session, held not violative of Constitution, sec. 171, providing that taxes shall be levied by general law and be uniform within territorial limits of authority levying the tax; tolls not being taxes within meaning of such provision, but being compensation paid for the use of a bridge.

10. Bridges. — State Highway Toll Bridge Act, passed at 1928 legislative session, held not invalid because giving highway commission right to select bridges for condemnation or to combine two bridges in one bond issue.

11. Eminent Domain. — State Highway Toll Bridge Act, passed at 1928 legislative session, held not defective in faliing to make any provision for the condemnation of franchises, since the taking of a bridge under the act is a taking of the franchise to collect tolls on the bridge and must be compensated for in the condemnation proceedings.

12. Statutes. — State Highway Toll Bridge Act, passed at 1928 legislative session, held not violative of Constitution, sec. 59, subsecs. 15, 16, or 17, as special legislation, or any other section of the Constitution.

13. Taxation. — State Highway Toll Bridge Act, passed at 1928 legislative session, held not unconstitutional because of exemption of the bonds issued under the act from taxation, in view of Constitution, sec. 171, that bonds of state, counties, municipalities, taxing and school districts shall not be subject to taxation.

14. States. — State Highway Toll Bridge Act, passed at 1928 legislative session, held not violative of Constitution, sec, 177, prohibiting the pledging or giving away of the state credit to any company, corporation, or political subdivision of the state.

Appeal from Franklin Circuit Court.

CHAS. H. MORRIS for appellant.

J.W. CAMMACK, Attorney General, and CLIFFORD E. SMITH, Assistant Attorney General, for appellees.

BURNAM & GREENLEAF and FIELDS, BYERS & MOORE, amici curiae.

OPINION OF THE COURT BY COMMISSIONER HOBSON.

Affirming.

At its 1928 session, the General Assembly enacted, and the Governor approved, a bill known as the "State Highway Toll Bridge Act," empowering the state highway commission as the agency of the state to build or cause to be built, or to purchase or acquire by condemnation or otherwise, and own and operate, bridges and necessary appurtenances thereto across any stream in Kentucky or stream that is the boundary line between Kentucky and any other state, and to issue bonds in payment therefor, the bonds not to be an obligation of the commonwealth; the commission shall fix toll charges sufficient to maintain the bridge and appurtenances and pay the interest on the bonds and retire the bonds at maturity. The tolls collected shall be paid into the state treasury to be kept in a separate fund known as the "Highway Bridge Fund," and can only be used for paying the cost of operating and maintaining the particular bridge or bridges and for paying the interest on the bonds issued as a charge against the particular bridge or bridges. The commission is authorized to provide in the bonds for a first lien on such tolls as may be collected for the use of any such bridge or bridges, also a lien on the structure of the bridge and approaches thereto. But it is provided that the bonds shall not be an obligation of the state or payable out of any fund, except that derived as above stated. The act also authorizes the commission to couple not more than two bridges under one contract and under one bond issue, the tolls and revenues derived from such two bridges to be used for the payment of the cost of operation and maintenance and for the payment of the interest and retirement of the bonds. Only the good faith of the commonwealth is pledged to give its moral support to the collection of the tolls and payment of the principal and interest on the bonds, which by the terms of the act shall be free from taxation. The commission is empowered to fix the rate of tolls and charge and collect them for such length of time as in the opinion of the commission will be sufficient to pay off the bonds issued for the erection or purchase of the bridge. It is authorized to retire the bonds at any time after one year from the date of their issue; the rate of tolls to be charged and collected, if fixed in any bond or bonds, shall not be reduced without the consent of the bondholders. After the bridge or bridges, acquired under the provisions of the act, have been fully paid for, the bridge or bridges shall be free of toll charges unless tolls may be deemed necessary to pay the cost or some extraordinary casualty or calamity, and only such as may be necessary for this purpose may be collected. All the cost of acquiring right of way, preparing plans and specifications, advertising, purchasing, or constructing the bridges shall be paid from the bonds to be issued under the act. The cost of operation and maintenance shall be paid from the tolls charged and collected. In the event the tolls should in any case be insufficient, then the bonds are a lien on the bridge or bridges.

The appellant C.R. Bloxton, a citizen and taxpayer of Frankfort, Ky., filed a suit in the Franklin circuit court to test the constitutionality of the act, attacking it on a number of grounds. The People's State Bank filed in the action its intervening petition, stating that it expected to be bidder for the bonds authorized by the act, provided the act is constitutional. It prayed the court to determine under the Declaratory Judgment Act (Laws 1922, c. 83) the constitutionality of each provision of the act. The defendant demurred to the plaintiff's petition. The circuit court sustained the demurrer and adjudged the act valid. The plaintiff appeals, and on the appeal attorneys for other taxpayers and toll bridge companies have filed a brief as amicus curiae, insisting that the act is unconstitutional in certain respects. The objections will be taken up in the order in which they are stated in the briefs.

1. It is insisted that the act authorizing the condemnation of bridges that are now operated under franchises heretofore obtained is in violation of section 19 of the Constitution, providing that no law shall be enacted impairing the obligation of a contract. But under the act the property may only be condemned for public purposes upon paying fair compensation therefor. Any property owned by the citizen may be taken for public purposes under the Constitution when just compensation therefor is paid the owner. Section 242. A franchise stands exactly as any other property; it is personal property, and like any other personal property may be taken for the public use upon just compensation.

"A franchise must be surrendered up for a public use, like any other property, upon just compensation being made. The rule extends to street railroads,...