Commonwealth v. MacKibben

• Decision Date: 18 September 1890
• Parties: COMMONWEALTH ex rel. AUDITOR'S AGENT v. MACKIBBEN, County Judge.
• Court: Kentucky Court of Appeals

14 S.W. 372

90 Ky. 384

COMMONWEALTH ex rel. AUDITOR'S AGENT v. MACKIBBEN, County Judge.

Court of Appeals of Kentucky.

September 18, 1890

Appeal from circuit court, Campbell county.

"To be officially reported."

p>Page E. W. Hines and Jesse Arthur, for appellant.

Chas J. Helm, for appellee.

BENNETT J.

This was a proceeding, under the auditor's agent act, to have the water-works belonging to the city of Newport taxed by the county court for state purposes. The county court refused to have said water-works listed for taxation for state purposes upon the ground that, by an amended act of the legislature of this state, said property was exempted from "state or county taxes as long as the same remained unproductive," and, as the same was not productive at the time the request was made and acted on, said property was exempt from state taxation. The case is here on mandamus to compel the judge of said court to list said property for taxation.

If the amended act exempting said property from taxation is unconstitutional, the court ought to have listed said property for state taxation. So the question is, had the legislature the constitutional power to exempt said property from taxation? Upon that subject, the first section of our bill of rights declares "that no man or set of men are entitled to exclusive, separate public emoluments or privileges from the community but in consideration of public services." It is not contended that the act authorizing the building and operating of said water-works required any "public service" to be rendered to the state. It is equally clear that the amended act exempting said property from taxation did not require any public service to be rendered the state in consideration of such exemption. It is equally clear, as matter of law, that the exemption, to be constitutional, must be made in consideration of public services rendered or to be thereafter rendered, and such services must be expressed in the act making the exemption or in the act to which the amended act making the exemption is an amendment. Therefore, as none of the acts appertaining to said water-works required the appellee to render any public services to the state in consideration of the water-works property being exempted from state taxation, it is clear that, if the appellee stands on the same footing as an individual, the act exempting said property from taxation is unconstitutional. So the question is, was the power granted to the appellee to construct and operate said water-works granted to it as necessary to carrying on its municipal government as a political power, or simply as a private corporation for the convenience or profit of its citizens? If the former, the exemption is constitutional; if the latter, it is not. But may a city be treated as a private corporation in the exercise of powers not necessary to carrying on its municipal government as a political power? We have heretofore said that it may be so treated. We have also said that its property, necessary to carrying on its municipal government as a political power, is not subject to state taxation; but, if it is not necessary for such purpose then it must be treated as the property of a private corporation, and is subject to state taxation unless it is expressly exempted in consideration of public services. The case of City of Louisville v. Com., 1 Duv. 298 aptly illustrates the foregoing views. In ...