District Board of Tuberculosis Sanatorium Trustees for Fayette County v. City of Lexington

• Citation: 12 S.W.2d 348,227 Ky. 7
• Parties: DISTRICT BOARD OF TUBERCULOSIS SANATORIUM TRUSTEES FOR FAYETTE COUNTY v. CITY OF LEXINGTON et al.
• Decision Date: 20 November 1928
• Court: Court of Appeals of Kentucky

12 S.W.2d 348

227 Ky. 7

DISTRICT BOARD OF TUBERCULOSIS SANATORIUM TRUSTEES FOR FAYETTE COUNTY v. CITY OF LEXINGTON et al.

Court of Appeals of Kentucky

November 20, 1928

Appeal from Circuit Court, Fayette County.

Action by the District Board of Tuberculosis Sanatorium Trustees for Fayette County against the City of Lexington and Fayette County. From the judgment rendered, plaintiff and defendant county appeal. Affirmed in part and reversed in part and remanded.

Willis J., and Clay, C.J., dissenting.

J. P Johnston, Hunt, Northcutt & Bush and R. J. Colbert, all of Lexington, for appellants.

William H. Townsend, Guy A. Huguelet, and James Park, all of Lexington, for appellee.

McCANDLESS J.

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 1912 the 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 courts 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 first be admitted. 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 that such applicant was unable to pay for his treatment and maintenance in the institution. Acts 1912, pp. 353-372, Ky. Stats. §§ 4711b1-4711b28, inclusive. This short summary of the act is not exhaustive, but it is sufficient to indicate its scope, character, and purpose.

The fiscal court of Fayette county declined to establish a sanatorium district. The referendum provision of the act was utilized, and, at the election in November, 1913, the voters required the fiscal court to establish such a district consisting of the entire county, which was accordingly done. A site was selected and approved in accordance with the act, and acquired and paid for by voluntary donations, without waiting for the fiscal court to raise the necessary funds by taxation. The fiscal court erected some buildings out of public money and began the operation of the institution. A donation of $12,000 by Madeline Harriet McDowell was used to add a building for children. In 1924 the act was amended, but still required the fiscal court by an annual levy to maintain the institution, and required the state to pay 50 cents per day for each free tuberculosis patient treated and cared for in such sanatorium. The amendment transferred the duties theretofore imposed on the board of tuberculosis commissioners to the state board of health, a board composed of eight members appointed by the Governor from lists submitted to him by each of the various schools of medicine, and provided, as before, for the appointment of the district board by the county judge. On April 8, 1924, Leo J. Marks entered into a contract with the district board, which provided that he would donate $125,000 for its purpose, if given the right to nominate two trustees, and with certain other conditions not necessary to be recited. The General Assembly of 1926 passed an act (chapter 159, Acts of 1926) providing, in substance, that any one who donated $100,000 or more to such a sanatorium district should have the right to nominate or designate two additional members of the board of trustees, to be appointed by the county judge from a list furnished by the donor. The act further expressly authorized the board to accept gifts on the conditions specified therein. The validity of that act was upheld by the lower court, and it is not now assailed. The gift of Marks has been completed and the buildings erected, but appellant is unable to operate it for lack of funds, although the applications of many patients needing the care and treatment are on file and their treatment necessarily deferred. At the same session the General Assembly passed another act (chapter 155), for the purpose of meeting the expenses necessary for the establishment and maintenance of a district tuberculosis sanatorium in districts containing a city or cities of the second class, providing that, when a sanatorium was established in such county, the fiscal court of such county was authorized, empowered, and directed to levy a tax not to exceed 6 cents and not less than 3 cents on each $100 of taxables in such county, and the general council or board of commissioners of the city was authorized, empowered, and directed to levy a tax not to exceed 8 cents and not less than 6 cents on each $100 of taxables in said city. The sums derived from the levies by the city and county were to be paid over to the board of trustees for the operation and maintenance of the institution. Provision was made to the effect that, if the levies in the year exceeded the expense of maintenance, the levy for the ensuing years should be reduced accordingly.

The circuit court held that chapter 155 of the Acts of 1926 was invalid; that chapter 159 of the Acts of 1926, and chapter 111 of the Acts of 1912, as amended by chapter 106 of the Acts of 1924, were valid and should be construed to require the fiscal court to provide funds by taxation and pay the board's operating expenses and the maintenance of the sanatorium as conducted in the buildings constructed by the fiscal court, but that the fiscal court was under no duty to provide operating expenses or maintenance for the buildings acquired by donations and erected upon the tuberculosis site. The district board of tuberculosis sanatorium trustees for Fayette county appeals, insisting that chapter 155 is valid, and that the county and city should be required to maintain the donated buildings. Fayette county has taken a cross-appeal, insisting that the act of 1912 and 1924 should be so construed as to give it absolute and uncontrolled discretion in the matter of maintenance even as to the buildings it has erected, and that, if otherwise construed, the act would in effect vest the district board with the power of levying taxes, and for that reason should be held invalid.

In questioning the validity of a statute or construing the language of the Constitution, courts proceed with great caution. "We...