City of Louisville v. Kuntz

• Court: Kentucky Court of Appeals
• Writing for the Court: BURNAM, J.
• Citation: City of Louisville v. Kuntz, 104 Ky. 584, 47 S.W. 592 (Ky. Ct. App. 1898)
• Decision Date: 26 October 1898
• Parties: CITY OF LOUISVILLE v. KUNTZ. [1]

47 S.W. 592

104 Ky. 584

CITY OF LOUISVILLE v. KUNTZ. ^[1]

Court of Appeals of Kentucky.

October 26,1898

Appeal from circuit court, Jefferson county.

"To be officially reported."

Action by Mary S. Kuntz against R. L. Clark and the city of Louisville to recover damages for injury to property. Judgment for plaintiff, and the city of Louisville appeals. Affirmed.

Henry L. Stone, for appellant.

Wm Marshall Bullitt, for appellee.

BURNAM J.

Appellee Mary S. Kuntz, instituted this action against R. L. Clark and the city of Louisville, alleging that she was the owner of a lot, and the improvements thereon, located in the city of Louisville; that the city authorized the construction of an alley by the side of it, and that the contract for the work was let to the defendant Clark; and that the appellant, in constructing the alley, encroached upon her premises without right, and negligently destroyed a part of her stable. The defendant Clark filed his separate answer, denying the allegations of the petition, while appellant, in addition to its general traverse, in the second paragraph of its answer pleaded the six-months statute of limitations, which is a provision of charters of cities of the first class, and which provides that "actions against the city for damages for injuries to person or property shall be begun within six months after the cause of action accrued." Appellee demurred to this paragraph, and the court below sustained the demurrer, and upon the trial appellee recovered a judgment against both defendants, and, the motion of the city for a new trial having been overruled, this appeal is prosecuted.

The only question involved on the appeal is whether the statute of limitations relied on by appellant is a good defense to the action, and this depends upon the power of the legislature to enact it. The question, therefore, to be determined is, is it a special or local act which is prohibited by section 59, subsec. 5, Const., which provides that "the general assembly shall not pass local or special acts concerning any of the following subjects or for any of the following purposes, namely: *** Fifth, to regulate the limitation of civil or criminal causes"? Or is it authorized and embraced by the provisions of section 156 of the constitution, which provides for the classification of cities and towns, 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? Appellant contends that as the provision relied on is a section of the general act of the legislature passed in conformity with the requirements of section 156 of the constitution, providing for the government of all cities of the first class, it is a general statute of local application, not special or local within the inhibition of section 59, and that it was within the power of the legislature to pass it. This six-months statute of limitations was a provision of the old charter of appellant prior to the adoption of the general act for the government of cities of the first class, and its constitutionality was upheld by this court in the case of Preston v. City of Louisville, 84 Ky. 118; and similar provisions in the charters of the city of Covington were held to be constitutional in City of Covington v. Voskotter, 80 Ky. 219, and City of Covington v. Hoadley, 83 Ky 444. But at the time these opinions were rendered there was no constitutional provision enumerating specifically the subjects concerning which it was provided the legislature should not pass local or special acts, and those cases turned upon the question as to whether this provision conferred a special privilege upon the city not in consideration of a public service; and it was held that, "as between a municipal corporation and a private person, a different rule might be adopted by the legislature," upon the theory that "the city is an arm of the state government, and as such performs a public service." But section 59 of the constitution expressly prohibits the legislature from passing a local or special act relating to limitation, and this case clearly illustrates the wisdom of the provision. The city and an individual are sued for a joint trespass. If either is guilty, the city is most in fault, because it was the investigator of the wrong complained of, but, if the statute relied on is held to be not a local or special one, it will be permitted to escape all liability, while its mere servant in the perpetration of the injury must bear the burden of their joint wrongdoing; and thus we have one rule of limitation for cities of the first class, and another for all persons, natural or artificial.

When the constitution prohibits the legislature from passing special laws upon any given subject, it means that all laws upon that subject shall operate alike upon all, whether individual or corporate, public or private. It is a safeguard provided by the constitution for the protection of the weak as well as the strong. The legislature has power to make law fixing the time when an action must be brought, but they must be general in their character, as the constitution prohibits the legislature from discriminating in favor of or against individuals or classes, when it declares that there shall be no special legislation on the subjects enumerated in section 59; while section 156 makes classification of cities only for the purpose of organization and government, and provides that the powers and organization of each shall be defined and provided for by general laws pertaining thereto. But section 59 expressly excepts the subject of limitation of civil and...