City of Covington v. District of Highlands of Campbell County

• Decision Date: 05 June 1902
• Citation: 68 S.W. 669,113 Ky. 612
• Parties: CITY OF COVINGTON v. DISTRICT OF HIGHLANDS, OF CAMPBELL COUNTY. [1]
• Court: Kentucky Court of Appeals

68 S.W. 669

113 Ky. 612

CITY OF COVINGTON v. DISTRICT OF HIGHLANDS, OF CAMPBELL COUNTY. ^[1]

Court of Appeals of Kentucky.

June 5, 1902

Appeal from circuit court, Campbell county.

"To be officially reported."

Action by the district of Highlands, of Campbell county, against the city of Covington, for the appointment of a receiver, and the enforcement of a lien for taxes. Judgment for plaintiff, and defendant appeals. Affirmed.

Ramsey Washington, F. J. Hanlon, and Geo. Washington, for appellant.

L. J Crawford, for appellee.

O'REAR J.

By an act of the legislature approved February 27, 1867, and by various amendatory acts thereto, passed prior to September 1891, a certain territory in Campbell county was incorporated as "the district of Highlands in Campbell county." It was provided with a constabulary, justices of the peace and trustees, who were empowered to pass by-laws for its government; was authorized to establish and maintain graded schools, and to establish and maintain roads within the district, to condemn lands for these purposes, and to levy collect, and appropriate a sufficient revenue by taxation to meet the obligations of its government Within the territory of this district is located the waterworks plant owned by the city of Covington. The board of trustees of the district assessed taxes to the amount of 50 cents on the $100 upon all property in the district subject to taxation for the years 1899, 1900, and 1901. The acts creating the district permitted that rate. The assessor of the district and its board of supervisors provided by the special acts above referred to assessed the waterworks plant of appellant for the year 1899 at the valuation of $248,460, for the year 1900 at $425,000, and for 1901 at $425,000. The city of Covington having defaulted in the payment of the taxes for the years named, this suit was brought in the Campbell circuit court for the appointment of a receiver of the waterworks plant, and for the enforcement of appellee's lien given to it by the statute upon the property assessed and in default. The circuit court granted the relief. The city of Covington, appealing, contends that the special acts creating the district of Highlands were repealed upon the adoption of the new constitution in September, 1891; that consequently the levy of the tax by its trustees was without authority of law and is void. It is argued for appellant that the only municipalities provided for by the present constitution are counties, cities, towns, and school districts, and that, as no provision is made for the incorporation of any other municipality, the creation of such would be unauthorized by law, and that such as had been created prior to the present constitution ceased to be, and were without legal authority, upon the adoption of that instrument.

The district of Highlands is a suburban country community upon the hills back of Newport, and is about 4 miles in length with an average width of from 1 to 1 1/2 miles. Within it is located the army post, Ft. Thomas. It is traversed by two macadam roads of extraordinary width, and is traversed by one street car line. The municipality has provided sidewalks for a considerable distance along these roads. Quite a number of suburban residences are within the territory, and in the immediate vicinity of the fort are shops, places of amusement, etc. The district is not a town, and therefore could not be properly classified as such, as the legislature was required by the constitution to do. Stephens v. Felton (Ky.) 35 S.W. 1116. While it is true that the legislature is prohibited by the present constitution from passing special acts incorporating any particular locality into a town or other municipality, it by no means follows that all the acts for that purpose passed prior to the adoption of the present constitution were repealed by that instrument. The schedule adopted with the constitution declares: "That all laws of this commonwealth in force at the time of the adoption of this constitution, not inconsistent therewith, shall remain in full force until altered or repealed by the general assembly; and all rights, actions, prosecutions, claims and contracts of the state, counties, individuals or bodies corporate, not inconsistent therewith, shall continue as valid as if this constitution had not been adopted. The provisions of all laws which are inconsistent with this constitution shall cease upon its adoption, except that all laws which are inconsistent with such provisions as require legislation to enforce them shall remain in force until such legislation is had, but not longer than six years after the adoption of this constitution, unless sooner amended or repealed by the general assembly." This schedule should be read in connection with section 59 of the constitution, which imposes limitations upon the power of the general assembly, prohibiting it from parsing local or special acts in any case where a general law can be made applicable. In Pearce v. Mason Co., 99 Ky. 363, 35 S.W. 1122, the question involved was the validity of a local act of May, 1886, to provide free turnpike roads in Mason county. It was there contended that the local act was no longer in force,--not upon any provision of the constitution expressly repealing it, or upon legislation subsequently had, if its effect be determined by the ordinary rule of statutory repeal, but upon the contention that the policy of the constitution, which demands a substitution of general laws for all local ones, is inconsistent with the act. Therefore it was argued that when a general law on the subject of free turnpikes, such as might be found in the fragmentary and incomplete legislative enactments on that subject since the adoption of the constitution, was adopted, it must be taken as a full and complete expression of legislative will on that behalf. It was there said: "Section 59 prohibits the passage of local or special legislation regulating or authorizing the levy or collection of taxes (subsection 15), or authorizing the opening, altering, maintaining, or vacating roads, highways, streets, alleys, etc. (subsection 16). These provisions look altogether to future legislation, and manifestly do not affect, directly or indirectly, the laws already in force. The existing special legislation on the subjects named in the various subsections of section 59, with respect to which special acts are now prohibited, does not stand repealed by the mere force of such prohibition." In Long v. City of Louisville, 97 Ky. 364, 30 S.W. 987, it was expressly declared that constitutional provisions must be construed as prospective, and not retrospective, unless constrained to the contrary course by the rigor of the phraseology. The court cited and quoted approvingly from Judge Cooley's work on Taxation (page 294); the same eminent author's work on Constitutional Limitations (page 77); Slack v. Railroad Co., 13 B. Mon. 1, holding that the provisions of the constitution of 1850 should have prospective, and not retrospective, operation, unless otherwise clearly indicated; Beadleston v. Sprague, 6 Johns. 101 (Chancellor Kent). In O'Mahoney v. Bullock, 97 Ky. 774, 31 S.W. 878, it was said: "While the framers of the constitution evinced their hostility, so to speak, toward local and special legislation, and authorized the passage only of general laws, we do not understand that the general rules of construction, by which one act may be construed to repeal another, have in any wise been changed. Among these well-settled rules are these: That a general statute will not, by mere implication, repeal a former one which is special or local; that, moreover, there must be such a repugnancy between the provisions of the acts that they cannot stand together or be consistently reconciled." This language was used with reference to the controversy whether the general law on the...