District Bd. T.S. Trustees v. City of Lexington

• Decision Date: 20 November 1928
• Citation: 227 Ky. 7
• Parties: District Board of Tuberculosis Sanitarium Trustees for Fayette County v. City of Lexington.
• Court: Supreme Court of Kentucky

227 Ky. 7

District Board of Tuberculosis SanitariumTrustees for Fayette County v.City of Lexington.

Court of Appeals of Kentucky.

Decided November 20, 1928.

1.Constitutional Law.— In questioning the validity of a statute or construing the language of the Constitution, courts proceed with great caution.

2.Constitutional Law.— One assailing constitutionality of act of General Assembly, wherein legislative power of the people is reposed, has burden of pointing to section or provision of Constitution violated.

3.Constitutional Law.— Court of Appeals' construction of Constitution, accepted and acquiesced in for many years, is as much a part of such instrument as if written into it at its origin.

4.Constitutional Law.— The Legislature may pass any act not forbidden expressly or by necessary implication, by the Constitution of the commonwealth, but court should not hestitate to condemn any legislation conflicting therewith expressly or by necessary implication.

5.Municipal Corporations.— Constitution, secs. 181,181a, forbidding General Assembly from imposing taxes for purposes of any county city, town, or other municipal corporation, do not apply to matters of state-wide importance, in which there is also a local interest, but apply to matters of purely local concern and matters of state concern, in which municipality as political unit is not directly interested or recognized.

6. Health.— Eradication of disease and preservation of public health being public purpose and matter of state-wide, as well as local, importance, Constitution, secs. 181,181a, forbidding General Assembly from imposing taxes for municipal purposes, do not inhibit it from creating tuberculosis districts and authorizing construction and maintenance of sanatoria by counties and cities in which located, in exercise of police power, as provided by Acts 1912, c. 111(Ky. Stats., secs. 4711b1-4711b28), and in case of second-class cities, by Ky. Stats., sec. 3058-1.

7. Hospitals.— Second-class city, empowered by Ky. Stats., sec. 3058-1 to construct and maintain a tubercuolsis sanitorium, and county in which such city is located, may act jointly in such matter by mutual consent, when authorized by specific legislation.

8.Municipal Corporations.— Acts 1926, c. 155, directing fiscal court of county containing second-class city to levy tax of not exceeding 6 nor less than 3 cents on each $100 of taxables in such county, and general council or board of commissioners of such city to levy tax of not exceeding 8 nor less than 6 cents on each $100 of taxables therein, for operation and maintenance of district tuberculosis sanatorium established in such county, held to violate Constitution, secs. 181,181a, as taxing people of city in amounts fixed by fiscal court's fit for support of institution established, conducted and controlled by county, without considering its financial condition or giving it any opportunity to protest.

9.Municipal Corporations.— Under Constitution, sec. 181a, Legislature may confer on counties, cities, towns, and other municipal corporations power to assess and collect taxes for themselves, but cannot delegate to one municipality or taxing district the power to tax another, unless latter is part of territory in which larger subdivision may levy a uniform tax.

10. Taxation.— Acts 1926, c. 155, authorizing fiscal court of county containing second-class city to levy tax of not exceeding 6 nor less than 3 cents on each $100 of taxables in county, and city council to levy tax not exceeding 8 nor less than 6 cents on same amount of taxables in city, for maintenance of county tuberculosis sanatorium, held contrary to Constitution, sec. 171, as imposing double taxation on citizens of city; such tax being independent of one levied by fiscal court on county as whole.

11. Statutes.— Provisions in same sentence of Acts 1926, c. 155, as to taxation of property in both county and second-class city therein for maintenance of county tuberculosis sanatorium, being so closely connected and interwoven that Legislature cannot be said to have enacted either in absence of the other, invalidity of provision relating to city taxation, under Constitution, secs, 171, 181, 181a, invalidates act in its entirety.

12. Counties.— Acts 1912, c. 111 (Ky. Stats., secs. 4711b1-4711b28), sec. 6, as amended byActs 1924, c. 106, sec. 1, subd. 3, requires county to make necessary tax levies for proper maintenance of, and care of patients in, county tuberculosis sanatorium buildings erected with donated funds, as well as those constructed by county itself.

13. Courts.— Opinion of Court of Appeals that district board of tuberculosis sanatorium trustees was not authorized by Acts 1912, c. 111 (Ky. Stats., secs. 4711b1-4711b28), sec. 6, as amended byActs 1926, c. 106, sec. 1, subd. 3, to require county fiscal court to appropriate sum designated by them for sanatorium needs, but that fiscal court had discretion in fixing amounts, is persuasive as reflecting court's view, though dicta, because case turned on another point.

14. Counties.— Acts 1912, c. 111 (Ky. Stats., secs. 4711b1-4711b28), sec. 6, as amended byActs 1926, c. 106, sec. 1, subd. 3, does not empower district board of tuberculosis sanatorium trustees to fix rate of taxation for maintenance of tuberculosis sanatorium, but leaves such matter to discretion of fiscal court, though latter may not refuse to act or arbitrarily refuse to provide sufficient funds for proper maintenance of such institution.

Appeal from Fayette Circuit Court.

J.B. JOHNSON, HUNT, NORTHCUTT & BUSH and R.J. COLBERT for appellants.

WILLIAM H. TOWNSEND, GUY A. HUGUELET and JAMES PARK for appellee.

OPINION OF THE COURT BY JUDGE McCANDLESS.

Affirming in part and reversing in part.

This appeal presents some interesting and important questions of constitutional law affecting the validity and construction of several acts of the General Assembly relating to the establishment, erection, and maintenance of a tuberculosis sanatorium for Lexington and Fayette county.In 1912the Legislature created the Kentucky Board of Tuberculosis Commissioners, conferred upon it prescribed powers, and delegated to it defined duties coextensive with the state.The ultimate objects to be obtained were, so far as possible, the eradication of tuberculosis and the education of the general public to the end that the ravages of that disease might be mitigated and confined.The commission was directed to study the subject, gather and disseminate information respecting the causes, cure, and prevention of the malady, and to combat it in every way that science could devise.The several objects of the act were definitely declared.An appropriation of $15,000 was made to be available to the commission immediately upon the passage of the act and a like amount annually upon the 1st day of July thereafter.Ways and means were provided for the creation of districts, purchase of sites, construction of buildings, and the maintenance thereof.A system of government for the districts was provided, and appointment of members of the governing boards was authorized.A district might consist of a single county or of two or more contiguous counties, if all consented thereto.If composed of a single county, its fiscal court was required to make a levy to yield revenue sufficient to meet the annual expenses of maintaining the institution.If composed of more than one county, the expense of construction and administration was to be prorated between them in proportion to the taxable property of each county, and the fiscal court of each was required to make an annual levy sufficient for this purpose.The fiscal court of any county was empowered to create a sanatorium district within the county.If it failed to act, a referendum to the people was permitted on a petition of twenty or more voters.If the vote was favorable, it became the mandatory duty of the fiscal court to establish a district and to appropriate out of the county funds a sum sufficient to acquire a site, and to make a tax levy sufficient to build and maintain the institution.Likewise the fiscal courts of several contiguous counties might take separate concurrent action to establish a district, or, upon their failure to act, a similar referendum might be had on the petition of 10 per cent. of the voters of each county composing the district, and, if a favorable vote was cast in each of the counties, it became the duty of the fiscal courts of such counties to establish and maintain such district.Upon the creation of the district, the Kentucky Board of Tuberculosis Commissioners were to recommend to the county judge in a district composed of a single county or to the several county judges in a district composed of more than one county the names of certain persons from which to select the district board of trustees.In a single county these were to be seven in number.In a district comprising several counties these were to consist of not fewer than two nor more than four persons from each county, with the further provision that in any county having a population of 20,000 there was allowed an additional trustee for each 10,000 persons in excess of that figure.

This board was constituted a body corporate and given all the powers necessary to carry into effect the purposes of the act, and all sums collected by taxes for sanatorium purposes were directed to be appropriated by the fiscal court, and to be paid by the treasurer to the secretary of the board.Indigent patients should be admitted first.If the free patients did not exhaust the capacity of the institution, other patients could be admitted and treated at their own expense, but no greater number of patients could be admitted to the institution than could be treated and taken care of properly.No free patient could be admitted without a certificate from the county judge of the county of his residence, in substance and to the effect...