Board of Councilmen of City of Frankfort v. Commonwealth

• Decision Date: 13 June 1906
• Citation: 94 S.W. 648
• Parties: BOARD OF COUNCILMEN OF CITY OF FRANKFORT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

94 S.W. 648

BOARD OF COUNCILMEN OF CITY OF FRANKFORT v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 13, 1906

Appeal from Circuit Court, Franklin County.

"To be officially reported."

Action between the board of councilmen of the city of Frankfort and the commonwealth of Kentucky. From a judgment for the latter the former appeals. Reversed and remanded.

Ira Julian, A. E. Richards, T. H. Crockett, and Joseph G Covington, for appellant.

Guy H Briggs, Hazelrigg, Chenault & Hazelrigg, and J. T. Buford for the Commonwealth.

PAYNTER J.

The question involved in this case is whether $40,000 bonds of the Capital Gas & Electric Light Company, owned by the city of Frankfort, for the purpose of lighting the streets of the city, are public property used for public purposes, within the meaning of the Constitution. The city of Frankfort owned a gas plant, but, deeming it to the best interest of the city to sell it, it did so, and in the sale acquired the bonds in question; the income from which being devoted solely to the purpose of paying the expenses of lighting the streets of the city. The bonds are nonnegotiable, and are to be held by the city of Frankfort for the purpose of carrying out its contract, now held by the Capital Gas & Electric Light Company.

The consideration of this question involves the review of opinions of this court, some of which were delivered before, and some of them after, the present Constitution was adopted. The question before us is a public one, one which not only affects the citizens of Frankfort, but likewise other cities and the commonwealth. Municipal governments are essential to the well-being of society, and to the administration of the public affairs of the commonwealth. They are sometimes called its arms. They are made to assume, in part, the burden of maintaining the peace and public health. Judge Robertson, in City of Louisville v. Commonwealth of Ky. 1 Duv. 295, 85 Am.Dec. 624, in speaking of municipal corporations, said: "But a municipal corporation, like a state, a county, or the city of Louisville, is much more than a person. While nominally a person, it is vitally a political power, and each in its prescribed sphere is 'imperium in imperio.' All are constituent elements of one total sovereignty. The city of Louisville, to the extent delegated to it by its charter, is but an effluence from the sovereignty of Kentucky, governs for Kentucky, and its authorized legislation and local administration of law are legislation and administration by Kentucky, through the agency of that municipality." It is proper that just relations be maintained between the municipalities and the commonwealth, that the provisions of the Constitution which were intended to regulate the rights of municipalities relative to taxation, as between them and the state, should be upheld, and that every right which is guarantied to municipalities should be sacredly preserved. If the court at some time has failed to properly define these rights, then it should not hesitate to recur to the Constitution, and, if possible, ascertain what these rights are, and adjudge that the municipalities shall enjoy such as are guarantied to them by it. If each municipality in its prescribed sphere is imperium in imperio, administers the law for Kentucky, it is difficult to understand why it should be required to pay taxes to the state and county on property held for public purposes, any more than the city should require the county and state to pay taxes on property held by them situated within the municipalities. Taking the city of Frankfort as an illustration: The state has vast property interests within the corporate limits of Frankfort. The streets and the lighting of same, which are necessary to the proper enjoyment of the state's property, are maintained by the city. The county of Franklin has a courthouse and jail within the corporate limits of Frankfort. It enjoys the same privileges as the state does with reference to its property. Now, the purpose here is to make the city of Frankfort pay taxes on property which it holds for public purposes to the state and to the county.

Before calling attention to the language of the Constitution to be interpreted, we will briefly review some of the opinions of this court and legislation out of which the controversies arose which required these opinions. At the time the opinion was delivered in City of Louisville v. Commonwealth, supra, there was neither statutory nor constitutional exemption in favor of municipalities, although the statute did exempt certain property from state taxation, and it was insisted that, as the statute specified the exemptions, the property of municipalities was thereby denied the right to exemptions from taxation. The court, however, held that the statute did not imply that the municipal property used for "public purposes of local government" was intended by the Legislature to be subjected to taxation. In reasoning upon the question, the court said (City of Louisville v. Commonwealth, supra): "And if, notwithstanding the specified exceptions, the public property of the state and counties is exempt, the same reason exempts the public property of Louisville used for carrying on its municipal government." But the court held that market houses, fire engines, and wharves were not thus held, and therefore were subject to taxation. At the time this opinion was delivered, the Legislature was in session, and on February 22, 1864 (Acts 1863-64, p. 118, c. 557), enacted the following statute: "That all property belonging to any city or town of this commonwealth, and which is necessary to carry on the government of such city or town, viz.: Police courthouse, mayor's offices (including offices for the various city or town officers in said building), fire engine houses, engine and horses belonging thereto, workhouse, almshouse, hospitals and pesthouse, together with the grounds belonging thereunto, be, and the same is hereby, exempt from taxation." It will be observed that the Legislature particularly said that fire engine houses, engine and horses belonging thereto, workhouse, almshouse, pesthouse, etc., should be exempt from taxation, and in effect declared they were "necessary to carry on the government of such city," etc. Thus the matter stood until the statute of May 17, 1886 (Acts 1885-86, p. 142, c. 1233, art. 1, § 9, subd. 4), which is as follows: "The following property shall be exempt from taxation: Property owned in its entirety by counties, cities and towns, which is necessary to carry on the government of such county, city or town." The Legislature in both instances seems to have followed the language of Judge Robertson, especially in the act of 1864, because it is therein specified that certain things were necessary to carry on the government of cities and towns. In the act of 1886 it will be observed that the property of cities and towns, which is necessary to carry on their governments, is exempt from taxation. It appears that the Legislature was fully advised as to the import of the opinion of this court in 1 Duv. 295, 85 Am.Dec. 624. Under the foregoing statutes the courts held that only such property as was used for governmental purposes was exempt from taxation. Roberts v. City of Louisville, 92 Ky. 95, 17 S.W. 216, 13 L.R.A. 844; Louisville Water Co. v. Hamilton, 81 Ky. 517; Commonwealth v. Makibben, 90 Ky. 384, 14 S.W. 372, 29 Am.St.Rep. 382; Clark v. Louisville Water Co., 90 Ky. 515, 14 S.W. 502; Commonwealth v. Louisville, 47 S.W. 865, 20 Ky. Law Rep. 893.

In view of the acts of the General Assembly, and the decisions of this court, the constitutional convention was called upon to deal with the question as to what properties of municipalities should be exempt from taxation. The subject was treated of under the head of "Revenue and Taxation." Section 170 of the Constitution says "There shall be exempt from taxation public property used for public purposes." Section 171, Const., provides, among other things, that taxes shall be levied and collected "for public purposes only." Were the words "for public purposes," used in section 170, Const., intended to have the same meaning as when used in section 171? There is nothing in the language of either section which even suggests that the constitutional convention had any intention to use the words in a different sense in these sections of the Constitution. In construing statutes, where words are repeated in them, they are presumed to have the same meaning throughout the statute, unless it appears by some language employed in the statutes that another meaning was intended. The same rule prevails in the interpretation of wills, and written instruments, and in Lewis' Sutherland Stat. Con. § 399, it is said: "A word or phrase repeated in a statute will bear the same meaning throughout the statute, unless a different intention appears." The same rule was announced in Pitte v. Shipley, 46 Cal. 160, and also in Ellis v. Polhemus, 27 Cal. 350. In Bates v. Bratton, 96 Tex. 279, 72 S.W. 157, it was said: "It is a rule in the construction of writings that ordinarily the same word is presumed to be used in the same sense throughout the instrument." The same rule is announced in Werner v. City of Rochester, 77 Hun, 33, 28 N.Y.S. 226. It is there said: "Ordinarily, when we find the same expression used in various provisions of the statute, the same meaning should be given to each." Justice Brewer, in delivering an opinion in County Seat of Lynn County, 15 Kan. 500, said: "When the Legislature has used the word in a statute in one sense with one meaning, and when it subsequently uses the same word in legislation respecting the same subject-matter, it will be understood to have used it in the same sense, unless there is...