Fox v. Bd. Louisville and Jeff. Co. Children's Home

• Decision Date: 08 March 1932
• Citation: Fox v. Bd. Louisville and Jeff. Co. Children's Home, 244 Ky. 1, 50 S.W.2d 67 (Ky. 1932)
• Parties: Fox et al. v. Board for Louisville and Jefferson County Children's Home.
• Court: Supreme Court of Kentucky

Page 1

244 Ky. 1

Fox et al. v. Board for Louisville and Jefferson County Children's Home.

Court of Appeals of Kentucky. (Chancery Branch, First Division).

Decided March 8, 1932.

1. Taxation. — Power to tax is sovereign power.

2. Taxation. — Sovereign power to tax can be exercised only by Legislature as provided by Constitution.

3. Counties. — Legislature's authority in determining power and framework of local county government and its local institutions is limited only by Constitution.

4. Counties. — State may constitutionally require county to levy taxes for general public purposes in which state at large is concerned (Constitution, secs. 181, 181a).

5. Counties. — County, in its quasi private corporate capacity, in which it acts for benefit of its citizens exclusively, may impose taxes in its discretion (Constitution, secs. 181, 181a).

6. Counties. — County in its governmental capacity has no discretion to impose taxes, but must act as state has required within constitutional limits (Constitution, secs. 181, 181a).

7. Counties. — Power of county to levy taxes both for municipal and purely governmental purposes must come from state.

8. Counties. — State may withhold from county or grant to it authority to levy taxes for governmental purposes, or may exercise such power itself.

9. Counties. — County derives its power by virtue of legislative enactment, except those conferred or imposed by Constitution.

10. Counties — Municipal Corporations. — County and city located therein, when acting under statute requiring them to impose tax to raise funds for corporation organized to care for delinquent

and neglected children, held but arms of state government (Ky. Stats., secs. 938b-1 to 938b-23).

11. Counties — Municipal Corporations. — Statute requiring county and city located therein to impose tax to provide funds for corporation organized to care for delinquent and neglected children held not unconstitutional as imposing double taxation (Ky. Stats., sec. 938b-1 to 438b-23; Constitution, sec. 171).

That Ky. Stats., secs. 938b-1 to 938b-23, authorized city to levy and collect taxes on property within city, did not, in so far as county wherein city was located was concerned, render county's levy and collection of taxes under such statute objectionable as double taxation, since the statute required the county to levy and collect taxes on all property alike within the county, whether within or without the city, and therefore county was without right to complain that statute infringed Constitution, sec. 171.

12. Taxation. — To constitute "double taxation," prohibited by Constitution, two or more taxes must be imposed on same property by same government, during same taxing period and for same purpose (Constitution, sec. 171).

13. Evidence. — It is common knowledge that counties levy taxes for county purposes on taxable property situated in cities and towns therein.

14. Counties — Municipal Corporations. — That statute authorized county judge and city mayor to appoint directors, by reason of whose acts property was taxed, to care for dependent and neglected children, held not objectionable as authorizing taxation without representation (Ky. Stats., secs. 938b-1 to 938b-23).

Ky. Stats., secs. 938b-1 to 938b-23, were not objectionable as authorizing taxation without representation, since the persons whose property was taxed by reason of acts of directors were represented in the General Assembly at time of enactment of statute, and the mayor and county judge who appointed the members of board of directors were elected by vote of people, and, when so appointing the directors, they acted as representatives of the taxpayers.

15. Counties. — Statute held to mandatorily require fiscal court to levy tax rate sufficient to produce amount fixed by budget as certified by directors of corporation organized to care for delinquent and neglected children (Ky. Stats., sec. 938b-1 to 938b-23).

In other words, the fiscal court was required by Ky. Stats., sec. 938b-1 to 938b-23, to levy and collect tax rate within the minimum and maximum fixed by the statute, sufficient to produce amount fixed by budget as certified by board of directors of corporation organized to care for delinquent and neglected children, with no discretion in fiscal court to alter or change the rate or to determine a different amount from that fixed by the budget.

16. Counties. — That statute mandatorily required fiscal court to levy tax to care for dependent and neglected children held not invalid as infringement of constitutional power of court (Ky. Stats., sec. 938b-1 to 938b-23).

17. Taxation. — Legislature may constitutionally create boards and delegate thereto duties in regard to taxation which are advisory or ministerial in nature.

18. Counties. — Legislature may constitutionally withhold from fiscal court all discretion to fix tax rate.

19. Counties. — Building of citizenship out of delinquent and neglected children of any county and city therein is subject for enactment which will insure provisions therefor.

Appeal from Jefferson Circuit Court

S.L. GREENEBAUM for appellants.

ROWAN HARDIN for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

Prior to 1912 two corporations were created by acts of the General Assembly of Kentucky, viz. the Louisville Industrial School of Reform, and the parental Home and School Commission of Jefferson county, located in the city of Louisville, Ky. These institutions were authorized to act independently of each other as corporate agents of the state, charged with powers to provide for the care, the maintenance, the training, and the education of certain classes of children residing in Jefferson county.

In 1920 the General Assembly repealed the original, amendatory, and supplementary acts creating and authorizing their operation. The same act authorized the organization of a corporation in the name of "the Board for Louisville and Jefferson County Children's Home" for the purpose of taking over the property and assuming the authority, duties, and powers of both of the old institutions. Ky. Stats., secs. 938b-1 to 938b-23, embrace the entire act. The Board for the Louisville & Jefferson County Children's Home is a body politic, organized by virtue of these sections of the statutes, with power to acquire, either by lease, purchase, gift or condemnation, lands or other property necessary or suitable for establishing and maintaining a home for the general purpose of caring for the development, the training, and the education of dependent, neglected, delinquent and incorrigible children.

A provision of the act authorizes the officers of the institution to receive, discharge, or parole from the home of the appellee children committed by any court or officer, or to keep, maintain, train, and educate them for such periods for which they may be respectively committed, during the time they are kept by the institution.

The appellee is empowered and directed by the act to provide and maintain and to cause to be provided and maintained, for the children received into its home, such schools and forms of instruction in branches of useful practical knowledge as necessary or proper for their education, and for the acquirement and practice by the children of useful labor or trades, suitable to their years and capacity. For that purpose it is made the duty of the officers of the institution to cause the employment and occupation of the children in its home and on its grounds and premises. It is clothed with power, within its discretion, to bind out any child as an apprentice to any person or persons, to learn proper trade and employment as in its judgment may be most conducive to the reformation or amendment or benefit or advantage of such child. The members of its board of directors are required to be selected and appointed by the mayor of the city of Louisville and by the judge or the county court of Jefferson county; each member to be a bona fide resident of the county or city, not less than 25 years of age; one-half the members to be of one political party, and the other of the other political party which at the last preceding general election in the county, respectively, cast the highest, and next highest, number of votes.

For the purpose of providing necessary funds for maintaining the institution, and carrying out the purpose of the act, the fiscal court of Jefferson county and the general council of the city of Louisville are each empowered and directed to levy and collect a tax of not less than 3 1/4 cents nor more than 5 cents on each $100 of the taxable property in the county and city, respectively, as determined by the last regular assessment of the county and city, respectively. All funds derived from such levy and collections are to be paid to, and expended by, the appellee for the purposes we have outlined. The amount the appellees may expend annually for the work of the institution is not to exceed the total sum derived through the levy and collection of the taxes for the year in which the levy is made and as supplemented by any funds donated or given for the same purpose. It is made the duty of the board of directors during the month of December of each year to prepare and certify to both the fiscal court and the general council a financial statement setting forth the total fund which in its judgment will be needed for the ensuing fiscal year for the maintenance of the home, and carrying out the purpose of the act, showing the estimated balance, the funds, estimates and expenditures for that purpose, and any other detailed information within the power of the board to furnish and as requested by the fiscal court and general council. In making the budget, the board of directors is required to divide and allot the revenues, funds, and assets estimated to be necessary and to become available for each fiscal year to the various branches or departments of expenditures to be made for the...