Menar v. Sanders

• Decision Date: 22 March 1916
• Citation: 169 Ky. 285,183 S.W. 949
• Parties: MENAR, MAYOR, ET AL. v. SANDERS.
• Court: Kentucky Court of Appeals

183 S.W. 949

169 Ky. 285

MENAR, MAYOR, ET AL. v. SANDERS.

Court of Appeals of Kentucky.

March 22, 1916

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Action by Elvira T. Sanders, executrix, etc., for mandamus against Ernest Menar, Mayor of the City of Oakdale, and others. Writ of mandamus granted, and defendants appeal. Affirmed.

Charles Carroll, of Louisville, for appellants.

Hubbard & Hubbard, of Louisville, for appellee.

SETTLE J.

Clarence W. Sanders, deceased, received injuries by being thrown from a wagon in driving on one of the streets of Oakdale, a city of the fifth class, which injuries resulted in his death. Thereafter his widow, the appellee Elvira T. Sanders, as executrix of his will, brought an action in the Jefferson circuit court to recover of the city of Oakdale damages for his death, alleged in the petition to have been caused by its negligence in maintaining the street in question in such a defective condition as to render it unsafe and dangerous for use by vehicles. The trial resulted in a verdict in her behalf for $2,000. From the judgment entered thereon the city of Oakdale, without executing a supersedeas bond, prosecuted an appeal to this court, which affirmed the judgment. See 155 Ky. 352, 159 S.W. 812.

Execution having been issued upon the judgment and returned "no property found," and the city of Oakdale persisting in its refusal to pay same, appellee, as executrix, instituted this action in the Jefferson circuit court, chancery branch first division, against the mayor, members of the council treasurer, clerk, and marshal of the city, asking that they be compelled by the writ of mandamus to levy and collect a tax upon all taxable property situated within the corporate limits of the city, sufficient to pay and satisfy her judgment, interest, and costs.

The appellants filed a general demurrer to the petition and without waiving same, also filed an answer, containing two paragraphs; the first, by way of legal conclusion, denying the right of appellee to the writ of mandamus. In the second paragraph it was alleged that the city of Oakdale has a bonded indebtedness of $25,000 incurred for the purpose of constructing sewers, and $10,000 for street construction; that these bond issues were authorized "by a proper vote at a proper election," and that the bonds were sold and the money applied to the purposes mentioned; that in order to pay the interest upon this bonded indebtedness, create a sinking fund to pay the bonds at maturity, raise a fund sufficient to pay the current expenses of the city, and enable it to perform its governmental functions as an arm of the state, it had been necessary for several years prior to the year of the institution of appellee's action, and for that year, to levy a tax of 75 cents on each $100 of taxable property within its corporate limits, and that such tax had been levied each year, including the present year, for the purposes mentioned, and when so collected it was divided and appropriated as indicated. The answer concludes with the following averments:

"Defendants further say that said city has no other money than such as it raised as above stated, and all of same has been and is applied for the purposes above mentioned, and it has no money and is unable to raise any money for the purpose of paying off the judgment of plaintiff in petition mentioned, and it has no constitutional power to increase its rate of taxation over 75 cents on the $100, and it has no constitutional right to apply any proportion of the fund so raised to any other purpose then as hereinabove stated."

Appellee filed a general demurrer to the answer and each paragraph thereof. Upon the submission of the case on the pleadings, the circuit court overruled the general demurrer of the appellants to appellee's petition, sustained the general demurrer of the appellee to the first and second paragraphs of appellants' answer, and granted the writ of mandamus prayed by appellee. Appellants' dissatisfaction with the judgment manifesting these several rulings led to this appeal.

The only question involved on this appeal is as to the proper construction of section 157 of the state Constitution, which provides:

"The tax rate of cities, towns, counties, taxing districts and other municipalities, for other than school purposes, shall not, at any time, exceed the following rates upon the value of the taxable property therein, viz.: For all towns or cities having a population of fifteen thousand or more, one dollar and fifty cents on the hundred dollars; for all towns or cities having less than fifteen thousand and not less than ten thousand, one dollar on the hundred dollars; for all towns or cities having less than ten thousand, seventy-five cents on the hundred dollars; * * * unless it should be necessary to enable such city, town, county, or taxing district to pay the interest on, and provide a sinking fund for the extinction of indebtedness contracted before the adoption of this Constitution. 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 the same."

It is the contention of appellants that under no circumstances has a city of less than 10,000 population, like Oakdale, the right to levy a tax, for other than school purposes, in excess of 75 cents on the $100 of taxable property in the city; and that as the Oakdale tax rate has already reached that limit, and the whole of the tax realized is required to pay the current governmental expenses of the city, interest on its bonded indebtedness, and provide a sinking fund for the retirement of the bonds at maturity, it cannot legally be compelled to levy a further or additional tax to pay appellee's judgment. In support of this contention emphasis is given by counsel to the words of section 157, Constitution, hereafter italicized:

"The tax rate * * *, for other than school purposes, shall not at any time, exceed * * * for all towns or cities having less than ten thousand, seventy-five cents on the hundred dollars; * * *"

--it being argued that the expression "shall not at any time" is so mandatory in character and unmistakable in meaning as to exclude any and every contingency that would allow the tax rate of 75 cents to be exceeded. In other words, that there is no exception or proviso to which the words "shall not at any time" do not apply; therefore, that it applies to any indebtedness of a city of less than 10,000 population, whether created by contract or cast upon it by law. It is conceded that the subsequent part of section 157, in providing that:

"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 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," etc.

--intends to apply the inhibition thus declared to contractual indebtedness alone; but insisted that whether the indebtedness of the city in any year, in excess of the income provided for such year, should arise out of a tort committed by the city or be incurred by consent of two-thirds of the voters thereof voting at an election to be held for that purpose, the tax levy to pay it and meet all other governmental expenses of the city, except for school purposes, is nevertheless confined to 75 cents on the $100, by the limitation contained in the words, "shall not at any time exceed * * * seventy-five cents on the hundred dollars. * * *"

Appellants' contention wholly ignores the clearly expressed object of section 157, which was and is, not to shield municipal corporations from the liability imposed by law for wrongs occasioned by their negligence, but to protect them from their own improvident acts, and extravagance. In other words, the limitations contained in that section apply to indebtednesses created or attempted to be incurred by the municipality by contract. They have no application where the liability incurred by the municipality is for a tort caused by or resulting from its own negligence. Such is the meaning we have repeatedly given this section.

One of the cases in which we so held is that of Hopkins County, etc., v. St. Bernard Coal Co., etc., 114 Ky. 153, 70 S.W. 289, 24 Ky. Law Rep. 942. The question presented was whether an action in favor of the sheriff and his posse would lie against the county of Hopkins and members of its fiscal court, under section 1241a, Kentucky Statutes, for $2,408, claimed for guarding, by order of the county judge, the property of the St. Bernard Coal Company against threatened mob violence. It was contended by the defendants that the statute under which the county judge ordered the guarding of the property was unconstitutional and that the liability sought to be imposed on the county was in violation of section 157 of the Constitution, but both contentions were rejected by the circuit court and the recovery allowed. In affirming that judgment we said:

"It is a part of the history of this state that in times of popular excitement many of the counties and towns of the state had voted subscriptions to railroads and

...