Covington Bridge Commission v. City of Covington

• Decision Date: 18 December 1934
• Parties: COVINGTON BRIDGE COMMISSION et al. v. CITY OF COVINGTON.
• Court: Kentucky Court of Appeals

79 S.W.2d 216

257 Ky. 813

COVINGTON BRIDGE COMMISSION et al. v. CITY OF COVINGTON.

Court of Appeals of Kentucky

December 18, 1934

Rehearing Denied March 19, 1935.

Appeal from Circuit Court, Kenton County, Criminal, Common Law, and Equity Division.

Action by the City of Covington against the Covington Bridge Commission and others. From the judgment, defendants appeal.

Reversed.

Robert C. Simmons, of Covington, for appellants.

Stephens L. Blakely, of Covington, for appellee.

RICHARDSON Justice.

We are required to determine the constitutionality of an Act approved March 14, 1932 (Acts 1932, c. 160, p. 726) entitled: "An act enabling cities of the Second Class to acquire, construct, improve, operate and maintain bridges across navigable streams, and to acquire and operate ferries thereover, so as to connect such cities with an adjoining State; providing for the creation of bridge commissions of such cities and prescribing their powers and duties authorizing the issuance of revenue bonds of such cities payable solely from bridge and ferry earnings, to pay the cost of such bridges and improvements thereof and such ferries; providing for the collection of bridge and ferry tolls for the payment of such bonds and for the cost of maintenance, operation and repair of the bridges and ferries setting forth the conditions upon which such bridges shall become free bridges; providing that no debt of such cities shall be incurred in the exercise of any of the powers granted by this Act; providing for condemnation."

The act comprises 24 sections. Section 22 expressly provides: "This Act shall be deemed to provide an additional and alternative method for the doing of the things authorized hereby and shall be regarded as supplementary and additional to powers conferred by other laws." At the time of its enactment, section 3058-5, Ky. St., sections 3235g-1 to 3235g-7, inclusive, and 3235g-8 to 3235g-30, inclusive (Ky. St. Supp. 1933, Acts 1932, c. 160), dealing with interstate bridges of second class cities, were the other laws alluded to in section 22.

The act under review, as its title indicates, created a commission, and section 3 authorized "the Mayor or other chief executive officer of such city, with the approval of the legislative body of the city, [to] appoint four persons who, with the Mayor or other chief executive officer, ex officio, shall constitute the bridge commission of said city." The terms of the commissioners were therein fixed at four years. It provides for the filling of vacancies, and requires the execution, by each member of the commission, a bond of the penal sum of $5,000 for the faithful performance of his duties, to be approved by the legislative body of the city. Section 4 prescribes the organization of the commission. Section 5 prohibits the members of the commission, employing their relatives or having an interest in any contract, and forbids its employees becoming in any way connected with any person, or interested in any firm or corporation, etc. Section 6 confers the authority upon the commission to acquire "by purchase any toll bridge over a navigable stream so as to connect such city with an adjoining state, or any such toll bridge wholly or partly constructed and/or any franchises, easements, permits and/or contracts for the construction of any such bridge, upon such terms and at such prices as may be considered by such bridge commission to be reasonable and can be agreed upon between it and the owner thereof, title thereto to be taken in the name of such city." Section 7 empowers the commission to acquire by condemnation any land, rights, easements, franchises, and other property deemed necessary for the improvement and/or the efficient operation of any property acquired or constructed under this act, including right of way and approaches leading to any such bridge. The title to any of the property condemned by the bridge commission shall be taken in the name of the city without any obligation on the part of the city to accept or pay for any property condemned or any costs incidental to the condemnation proceedings, except from funds received under the provisions of the act. Section 8 imposes the duty on the commission to improve bridges acquired thereunder. Section 9 authorizes the commission to construct bridges as therein provided, and section 10 to remove obstructions, etc. Section 11 expressly empowers the commission to issue revenue bonds, as therein set out, and directs what the bonds shall contain, and when issued, shall contain a statement on their face that the city shall not be obligated to pay the same or the interest thereon, except from the revenues of such bridge. Section 12 requires all moneys received from any bonds issued pursuant to the act shall be applied solely to the payment of the cost of the bridge or to the appurtenant sinking fund, and grants a lien upon such moneys, until so applied, in favor of the holder of the bonds, or the trustee directed to be appointed provided in respect to the bonds under the act. Section 13 authorizes the commission in its discretion to issue trust indentures for the purpose specified therein. Section 14 imperatively requires the commission to fix, charge, and collect tolls for transit over the bridge, which shall be used to provide a fund sufficient to pay bonds and the interest thereon, and with which to pay the cost of maintaining, repairing, and operating the bridge, subject, however, to any applicable law or regulation of the United States of America now in force or hereafter to be enacted or made. Section 15 directs, when the bonds issued for any bridge and the interest thereon shall have been paid or a sufficient amount shall have been provided for their payment, the commission shall cease to charge tolls for the use of the bridge, and thereafter it shall be free unless tolls shall be required for maintaining, repairing, and operating the bridge. Section 16 is confined to "action by trustee and bondholders." Section 17 grants the powers of the commission to make an agreement with any adjoining state or any municipality or political subdivision thereof, concerning the money or property necessary to defray the cost of construction, acquisition, operation, or maintenance of any bridge connecting such city with such other state or political subdivision. Section 18 inhibits the bridges and ferries as set forth therein. Section 19 authorizes the acquisition of ferries by the commission. Section 20 elaborately describes the general powers of the commission. And section 21 provides for the dissolution of the bridge commission. When the bonds and interest thereon issued hereunder shall have been paid or fully provided for, the commission shall stand dissolved; "thereupon the legislative body of such city shall assume the operation, maintenance and repair of any such bridge, and, unless the cost of operation, maintenance and repair shall be otherwise provided for, shall assume the collection of tolls for the payment of such cost, and shall do any and all other acts and things that may be necessary and convenient for the maintenance of such bridge."

In accordance with section 3, the mayor, with the approval of the legislative body, appointed Bert J. King, C. N. Heisel, Louis Meyer, and John P. Dunphy members of the bridge commission, who, with the mayor, ex officio, constitute the commission. They qualified by each of them taking, subscribing, and filing an oath of office, and executing bond in the penal sum of $5,000 each for the faithful performance of his duties which was approved by the legislative body and filed with the other official bonds of the city.

This action was brought under the Declaratory Judgment Act (section 639a-1 et seq., Civil Code of Practice), to determine the rights and powers of the city and the bridge commission under the act in connection with a resolution adopted by the city commissioners. The resolution reads:

"(1) That the option heretofore granted by the Covington and Cincinnati Elevated Railroad and Transfer and Bridge Company to the City of Covington to buy the vehicular and pedestrian portion of its bridge across the Ohio River be, and the same is hereby definitely rejected.

"(2) That in judgment of this Board it is against the best interests of the City of Covington to acquire any bridge across the Ohio River or to assume the maintenance thereof, or to forego the city's right to collect taxes from any such bridge under any form of contract.

"(3) The Bridge Commission of the City of Covington is hereby instructed that without further order of this Board, it shall not acquire any bridge on behalf of the City of Covington and it shall not enter into any contract or option to acquire or build or to maintain any such bridge.

"This ordinance shall take effect and be in force, when passed, published and recorded according to law."

In Klein et al. v. City of Louisville et al., 224 Ky. 624, 6 S.W.2d 1104, an act approved February 16, 1928 (chapter 74), conferring the power upon cities of the first class to acquire or construct an interstate bridge, substantially identical in title, context, provisions, and purpose with the act here under consideration, was declared constitutionally valid.

In Miller v. City of Louisville, 99 S.W. 284, 30 Ky. Law Rep. 664, we reviewed the constitutional validity of an act to enable cities of the first class to construct a comprehensive sewerage system for the disposition of sewerage. It was declared constitutionally valid.

The acts in the Klein and the Miller Cases were attacked in actions brought by tax-payers. It must be noted the present action was instituted by the city against the members of the commission appointed, qualified, and acting in pursuance of the act...