Knipper v. City of Covington

• Decision Date: 13 October 1900
• Citation: 109 Ky. 187,58 S.W. 498
• Parties: KNIPPER v. CITY OF COVINGTON. [1]
• Court: Kentucky Court of Appeals

58 S.W. 498

109 Ky. 187

KNIPPER v. CITY OF COVINGTON. ^[1]

Court of Appeals of Kentucky.

October 13, 1900

Appeal from circuit court, Kenton county.

"To be officially reported."

Action by one Knipper against the city of Covington for an injunction. Judgment for defendant, and plaintiff appeals. Reversed.

M. H McLean, for appellant.

F. J Hanlon, for appellee.

HAZELRIGG C.J.

It is contended on this appeal that, if the public health or safety required it, a city, notwithstanding the inhibitory language of section 157 of the constitution, may become indebted to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of the voters. So much of that section as is pertinent reads as follows:

"Sec 157. *** No county, city, town, taxing district, or other municipality shall be authorized or permitted to become indebted, in any manner or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose; and any indebtedness contracted in violation of this section shall be void. Nor shall such contract be enforceable by the person with whom made; nor shall such municipality ever be authorized to assume same."

Authority for the nullification of this section is sought to be found in section 158 of the constitution, which reads as follows:

"Sec. 158. The respective cities, towns, counties, taxing districts and municipalities shall not be authorized or permitted to incur indebtedness to an amount, including existing indebtedness, in the aggregate exceeding the following named maximum percentages on the value of the taxable property therein, to be estimated by the assessment next before the last assessment previous to the incurring of the indebtedness, viz.: Cities of the first and second classes, and of the third class having a population exceeding fifteen thousand, ten per centum; cities of the third class having a population of less than fifteen thousand, and cities and towns of the fourth class, five per centum; cities and towns of the fifth and sixth classes, three per centum; and counties, taxing districts and other municipalities, two per centum: provided, any city, town, county, taxing district or other municipality may contract an indebtedness in excess of such limitations when the same has been authorized under laws in force prior to the adoption of this constitution, or when necessary for the completion of any payment for a public improvement undertaken and not completed and paid for at the time of the adoption of the constitution: and provided, further, if, at the time of the adoption of this constitution, the aggregate indebtedness, bonded or floating, of any city, town, county, taxing district or other municipality, including that which it has been or may be authorized to contract as herein provided, shall exceed the limit herein prescribed, then no such city or town shall be authorized or permitted to increase its indebtedness in an amount exceeding two per centum, and no such county, taxing district or other municipality, in an amount exceeding one per centum, in the aggregate upon the value of the taxable property therein, to be ascertained as herein provided, until the aggregate of its indebtedness shall have been reduced below the limit herein fixed, and thereafter it shall not exceed the limit, unless, in case of emergency, the public health or safety should so require. Nothing herein shall prevent the issue of renewal bonds, or bonds to fund the floating indebtedness of any city, town, county, taxing district or other municipality."

It appears that the limit of the aggregate indebtedness of the appellee city, as prescribed in section 158, has not been reached, such indebtedness being yet within 10 per centum of the taxable property, and this limit will not be exceeded even if the bonds sought to be validated be issued. As the proviso in section 158, permitting an increase beyond the limit fixed in that section should the public health or safety so require, has in express terms reference solely to instances where this limit has been reached, and an emergency requires that there be an increase beyond this limit, we cannot conceive how the section can possibly have any application to the present case.

The first section, in plain and unambiguous language, provides a barrier against any indebtedness for any purpose, without a vote, beyond the revenues of the year. The second section is not a grant of power beyond this, but imposes an additional limitation on the creation of indebtedness in the aggregate. If a city has not reached the limits provided in section 158 the section has no bearing whatever in considering what indebtedness such a city may create. The limitations of that section are simply...