Frantz v. Jacob

• Decision Date: 07 May 1889
• Citation: 88 Ky. 525,11 S.W. 654
• Parties: RANTZ et al. v. JACOB, Mayor, et al.
• Court: Kentucky Court of Appeals

11 S.W. 654

88 Ky. 525

RANTZ et al. v. JACOB, Mayor, et al.

Court of Appeals of Kentucky.

May 7, 1889

Appeal from Louisville law and equity court; STERLING B. TONEY Judge.

"To be officially reported."

Action by David Frantz, Jr., and another against C. D. Jacob, mayor and others, to enjoin defendants from issuing certain municipal bonds for the city of Louisville. Injunction was denied petitioners, and they appeal.

L. N Dembitz and C. B. Seymour, for appellants.

Helm &amp Bruce and Brown, Humphrey & Davies, for appellees.

PRYOR J.

This action was instituted in the Louisville law and equity court by the appellant, who is a resident of that city, and a tax-payer, to enjoin the mayor and council from issuing $1,500,000 of bonds in accordance with the popular will, ascertained at an election held for that purpose, and by virtue of an ordinance under which the submission was made. No question is raised as to the passage of the ordinance, or the election held under it, but it is claimed that so much of the city charter as authorized such an appropriation, with the consent of the people or otherwise, was repealed by an act approved May 12, 1884, entitled "An act to revise and amend the tax laws of the city of Louisville." Section 67 of the charter of 1870 authorizes the city to borrow money, and to give or loan the credit of the city in aid of any person or corporation, for appropriate municipal objects. Section 68 provides the condition upon which the city council may contract debts and liabilities in behalf of the city beyond the amount of revenue of the current fiscal year and payable within or beyond such year. The ordinance authorizing the creation of the liability must be published in the newspapers of the city, as required by section 68. It must be approved by a majority of the votes cast for it by the qualified voters of the city. The aggregate vote for and against the ordinance must not be less than one fourth the aggregate vote at the last preceding general election for city or state purposes. Provision shall be made in said ordinance for levying and collecting the annual tax "upon such estate as may be designated by the council sufficient to pay the interest on such debt or liability as the same shall become due, and to discharge the principal thereof at maturity." The right of the tax-payer to enjoin in order to prevent the issuing of these bonds if illegal, both for his own protection and that of innocent parties who may purchase them, is not now an open question; and if this law under which the appropriation was made by the city, and approved by the popular vote, was repealed by the act of May 12, 1884, the injunction should have been perpetuated.

By an act approved March 11, 1884, under the title of "An act to designate certain persons to prepare new assessment and revenue laws for the city of Louisville," the legislature selected those learned in the law to prepare and formulate a complete system of laws "regulating in all respects the assessment of property and choses in action, the duties of all assessing and collecting officers, the time terms, and manner of the payment of taxes, and the compensation to be allowed officers charged with the raising and collection of the revenue." The act of May 12, 1884, was the product of the minds of one or more of the persons named in the act of March 11, 1884, and is aptly and skillfully drawn, with a view, not of making a new charter or of embodying all the law on the subject of taxation applicable to the city, but of revising and reforming the mode of collecting and imposing taxation to meet the ordinary annual expenditures of the city government. The framers of that act saw the changes essential to the proper mode of enforcing and collecting such revenue, and no allusion is made, either in the act in question or by the legislature, to the right of the city council to make extraordinary appropriations other than for the revenue proper, by the consent of the people expressed at the polls. In fact, the power to make such appropriations, having been taken from the council and confided to the people, was not the proper subject for consideration in discussing the plan to be adopted for enforcing the collection of the annual tax. It was not the imposition of a tax simply to defray the ordinary expenses of the city, but the question addressed to the voter is, shall the council or the city make contracts for improvements municipal in their character that create a liability on your property, to be enforced by taxation? The annual taxation as provided by the original charter and by the amendment of May 12, 1884, might be entirely inadequate to repair the public buildings of the city, or to reconstruct the streets that are worn out by constant travel, or the prosperity of the city might demand a large expenditure, essential to the health of its citizens or their comfort and convenience; and for such reasons section 68 of the charter of 1870 has been left untouched, that the city authorities may be able to meet any such emergency by the consent of the qualified voters. We do not mean to adjudge that when a system of street improvements has been adopted, and the western portion of the city has improved its streets by taxing the owner, this same owner may be taxed to improve the streets in the eastern part of the city in like manner. This would be unequal taxation, and open to constitutional objections, and, while that system producing equality and uniformity in imposing such burdens should be adhered to, when streets and sewers, etc., become so much out of repair as that the improvement if made at the expense of the property owner would result in a virtual confiscation of his property, or in the imposition of a burden unequal and...