Dieruf v. Louisville & Jefferson County Bd. of Health

• Decision Date: 07 March 1947
• Citation: 304 Ky. 207,200 S.W.2d 300
• Parties: DIERUF et al. v. LOUISVILLE & JEFFERSON COUNTY BOARD OF HEALTH, et al.
• Court: Kentucky Court of Appeals

200 S.W.2d 300

304 Ky. 207

DIERUF et al. v. LOUISVILLE & JEFFERSON COUNTY BOARD OF HEALTH, et al.

Court of Appeals of Kentucky

March 7, 1947

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division; Lawrence F. Speckman, Judge.

Action by the Louisville & Jefferson County Board of Health and others against Edward H. Dieruf, as director of finance of the City of Louisville and others for a declaratory judgment. From an adverse judgment, defendants appeal.

Affirmed.

Cyril C. Sehlinger, of Louisville, for appellants.

Gilbert Burnett, of Louisville, for appellees.

Fielden Woodward and Woodward, Dawson, Hobson & Fulton, all of Louisville, for Louisville Junior Chamber of Commerce, amicus curiae.

SIMS Justice.

This declaratory judgment action was instituted by the Louisville and Jefferson County Board of Health and E. Leland Taylor Mayor of the City of Louisville, against Edward H. Dieruf Director of Finance for the city, and the Board of Aldermen of Louisville, wherein the validity of KRS 181.500 (1946 Edition) was involved. The chancellor upheld the constitutionality of the Act and this appeal followed.

By Chapter 74, page 263 of the Acts of 1928, which became KRS Chapter 181, the General Assembly enabled first class cities to construct, operate and maintain toll bridges through a Bridge Commission (hereinafter referred to as the Commission). The venture was to be financed by the city selling revenue bonds to be paid solely out of the tolls received from the bridge. Section 13 of that Act (KRS 181.500, 1944 Statutes) provides that when all the bonds have been fully satisfied the Commission shall stand dissolved and the legislative body of the city shall assume the collection of tolls, the maintenance and operation of the bridge.

During the war years there were munition and defense plants located north and south of the Ohio River in close proximity to this Louisville bridge, which caused such an increase in traffic crossing it that the tolls paid off the bonds much sooner than anticipated, and left a surplus of some $274,000 in the hands of the Commission. The 1946 General Assembly by Chapter 196, page 528 of the Acts of that year, (KRS 181.500, 1946 Statutes) amended § 13 of the 1928 Act (KRS 181.500, 1944 Statutes) by providing that after all bonds were paid and the Commission dissolved that any cash reserve on hand should be turned over to the city to be used in such manner as should be determined by its Mayor. The amendment further provides that the city shall convey the bridge to the Commonwealth to be operated by the Department of Highways.

The petition avers that pursuant to this 1946 amendment the surplus of $274,000 was paid to the city upon the dissolution of the Commission on or about Nov. 4, 1946 and that this sum is in the custody of the City Director of Finance, Edward H. Dieruf, and stands to the credit of the Mayor's special account; that on Dec. 16, 1946, the Mayor gave a written direction to Dieruf to pay $100,000 of this fund to the Louisville and Jefferson County Board of Health.

The Board of Aldermen questioned the Mayor's authority to spend this bridge fund at his own discretion and the Director of Finance refused to make the transfer, which resulted in the Mayor instituting this suit to have the court declare whether or not the General Assembly has the power to vest in the Mayor of the City of Louisville the disposition of this windfall fund to be used in such manner as may be determined by the Mayor. As above stated, the chancellor held the Legislature did have this power and the Director of Finance and the Board of Aldermen appeal.

Appellants insist that the judgment should be reversed on four grounds 1. That this fund is a public fund and must be appropriated by the Board of Aldermen; 2. that under the pari materia doctrine the 1946 Act attempted to change the general statutory plan whereby the Board of Aldermen disburse city funds; 3. that the 1946 Act violates §§ 27, 28, 29, 59 and 60 of our Constitution; 4. that the General Assembly's attempt to delegate the power of the Board of Aldermen to the Mayor violates § 160 of our Constitution.

We will consider together the first two grounds for reversal urged by appellants. There can be no doubt that this is a public fund, as was expressly held in Louisville Bridge Commission v. Louisville Trust Co., 258 Ky. 846, 81 S.W.2d 894, but it is not revenue raised by taxation over which the Board of Aldermen have the power of appropriation, as is provided in KRS 91.050 and 91.290. This fund is a windfall which the General Assembly found when it decided that the State should take over the bridge after the bonds were paid and it had authority to turn the fund over to the city to be expended by the Mayor rather than by the Board of Aldermen.

We must disagree with appellants that the pari materia doctrine of construction of statutes applies here. It is written in 50 Am.Jur.§ 349, p. 345, that statutes in pari materia are not to be considered as isolated fragments of law, but as a whole or as a part of a connected system, unless a different purpose is clearly shown, as it will be presumed, in the absence of words specifically indicating to the contrary, that the Legislature did not intend to 'innovate on, unsettle, disregard, alter or violate a general statute or system of statutory provisions the entire subject matter of which is not directly or necessarily involved in the act.' As we have just stated in the preceding paragraph, this windfall is not the usual fund the Board of Aldermen appropriates and the 1946 Act has nothing to do with the disbursement of the usual funds of the city, but it does provide in positive, clear and unequivocal terms that this windfall shall be used in such manner as shall be determined by the Mayor. This takes the Act out of the pari materia rule of statutory construction.

Whether or not it would have been wiser or more appropriate for the General Assembly to put this fund at the disposal of the Board of Aldermen rather than the Mayor is no concern of the courts, as that rests entirely with the law-making body. The courts are only interested in the constitutionality and the interpretation of legislation. Johnson v. Com., 291 Ky. 829, 165 S.W.2d 820.

While appellants refer in their brief to §§ 27, 28 and 29 of the Constitution (creating and separating the three co-ordinate branches of government), they admit these sections do not apply to municipal governments, as was held in Bryan v Voss, 143...