Render v. City of Louisville

• Decision Date: 22 February 1911
• Citation: 142 Ky. 409,134 S.W. 458
• Parties: RENDER v. CITY OF LOUISVILLE et al.
• Court: Kentucky Court of Appeals

134 S.W. 458

142 Ky. 409

RENDER v. CITY OF LOUISVILLE et al.

Court of Appeals of Kentucky.

February 22, 1911

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

Action by L. M. Render against the City of Louisville and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Trabue Doolan & Cox, for appellant.

Clayton B. Blakey and Huston Quin, for appellees.

SETTLE J.

This action was instituted in the court below by appellant, a taxpayer of the city of Louisville, against the appellees city of Louisville, its mayor, and the persons composing the commissioners of hospital of the city of Louisville, to enjoin the issuance by the city of $1,000,000 of bonds for use in erecting and furnishing a city hospital. The city of Louisville claims the right to issue the bonds under authority conferred by an act of the General Assembly of the commonwealth of Kentucky approved March 14, 1910, entitled "An act to enable cities of the first class to construct a public hospital" (Laws 1910, c. 8), which provides that, in order to obtain money for the construction and furnishing of such hospital, the general council of a first-class city may adopt an ordinance submitting to the voters thereof, at the November election, 1910, the question of whether the bonds of the city should be issued for that purpose, and that such ordinance should specify the total number and amount of the bonds to be issued, not exceeding $1,000,000, the date and maturity thereof, the rate of interest they should bear, and how payable. Also, that the ordinance should contain the necessary details in reference to the execution and delivery of the bonds, their denomination, interest coupons to be attached, tax to be levied to pay the interest thereon, and create a sinking fund to retire the bonds at maturity. The act empowers the mayor of a city of the first class, having in contemplation the issuance of bonds for the construction of a hospital, to appoint four persons--two from the Democratic party and two from the Republican party--who, with the mayor as an ex officio member, shall constitute the commissioners of hospital of such city, with capacity as such to contract and be contracted with, sue, and be sued, and provides that to these commissioners shall be intrusted the control of the work of constructing and maintaining the hospital, also the duty of fixing the price of the bonds, selling the same, and receiving the proceeds; but with the proviso that none of them shall be sold for less than par, and that any premium obtained from their sale shall constitute a part of the sinking fund for their ultimate retirement.

It appears from the averments of the petition that the general council of the city of Louisville, pursuant to the authority conferred upon it by the act mentioned, adopted such an ordinance with respect to the holding of the required election, issuance of bonds, and other steps, as is by the act prescribed, and that the mayor duly appointed, with the approval of the general council, the four persons, two from each of the parties named, who are to act as commissioners of hospital. It further appears that, after due notice, the question of whether $1,000,000 of bonds maturing 40 years after date bearing interest at the rate of 4 1/2 per cent per annum, payable semiannually, should be issued by the city of Louisville for the purpose of constructing and furnishing a public hospital, was, as directed by the act and ordinance mentioned, submitted to the qualified voters of the city at the November election, 1910, and that at such election two-thirds of the qualified voters, voting upon the proposition, voted for the issuance of the bonds; that is to say, of 15,942 votes cast thereon, 11,892 were cast in favor of the issuance of the bonds and 4,050 in opposition thereto. It further appears from the averments of the petition that the appellee city of Louisville is now ready to issue and place in the hands of its commissioners of hospital, for sale upon the market, the bonds for the construction of the hospital, but that appellant objected in the circuit court to its doing so on the grounds, as alleged, that the act providing for the issuance and sale of the bonds is unconstitutional and the ordinance adopted in pursuance thereof invalid. Appellees filed a joint demurrer to the petition, which the circuit court sustained, and, appellant failing to plead further, judgment was entered refusing the injunction asked and dismissing the petition, and from that judgment he has appealed.

The constitutionality of the act of the Legislature authorizing the bond issue in question is assailed in the brief of appellant's counsel upon two grounds: "(1) That in providing for the issuance of the bonds, if the voters of the city shall determine that such bonds shall be issued (section 10 of the act), the Legislature failed to comply with a provision of section 157 of the Constitution of Kentucky, which requires the affirmative vote of two-thirds of the voters before bonds can be issued under such circumstances. (2) That the act (section 1) in requiring that two of the members of the hospital commission shall be members of the Democratic party and two members of the Republican party is in conflict with and repugnant to section 3 of the Constitution of Kentucky." So much of section 157 of the Constitution as bears on the question under consideration provides as follows: "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, an income or 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." It was not necessary that the act should embody the provisions of section 157 of the Constitution referred to or words of similar import, in order to make valid the election held in the city of Louisville to determine whether the bonds should be issued, or to make valid the issuance of the bonds following such election. It is not required that an act of the Legislature shall have incorporated in it any provision of the Constitution bearing on the matter therein made the subject of legislation. It is sufficient that it does not in terms or meaning conflict with any provision of the Constitution, and in determining whether the act conforms to that instrument it is to be tested by and in the light of its provisions.

In the case of Board of Education of Winchester v. City of Winchester, 120 Ky. 594, 87 S.W. 768, 27 Ky. Law Rep 994, objection was made that an act of the Legislature under which an election had been held authorizing the issue and sale of bonds by the city of Winchester for the erecting of a school building was in conflict with section 157 of the Constitution. In refusing to sustain the objection we said: "Every provision of the Constitution is mandatory. When it is provided that an indebtedness to a certain amount shall not be incurred without the assent of two-thirds of the electors voting at an election to be held for that purpose, it necessarily follows from the constitutional provision that such an indebtedness may be incurred with the assent of two-thirds of the voters. The Legislature can neither subtract from nor add to the constitutional requirement. The constitutional provision regulates the subject, and removes it from legislative control." Cooley, Const. Limitations, p. 64. It is proper to add in this connection that we also held in the case supra, that the meaning of section 157 of the Constitution is that the assent of two-thirds of the...