Webster v. City of Frankfort Housing Com'n

• Decision Date: 19 January 1943
• Citation: 293 Ky. 114,168 S.W.2d 344
• Parties: WEBSTER v. CITY OF FRANKFORT HOUSING COMMISSION.
• Court: Kentucky Court of Appeals

168 S.W.2d 344

293 Ky. 114

WEBSTER v. CITY OF FRANKFORT HOUSING COMMISSION.

Court of Appeals of Kentucky

January 19, 1943

Rehearing Denied March 2, 1943.

Appeal from Circuit Court, Franklin County; William B. Ardery Judge.

Action by the City of Frankfort Housing Commission against Ira Webster, Tax Commissioner of Franklin county, for an injunction against listing of plaintiff's property for ad valorem taxes, in which defendant filed a counterclaim for permission to list bonds issued by plaintiff for taxation. From a judgment dismissing the counterclaim and granting an injunction, defendant appeals.

Affirmed.

TILFORD J., dissenting.

Hubert Meredith, Atty. Gen., and Jesse K. Lewis, Asst. Atty. Gen for appellant.

D Collins Lee, of Covington, for appellee.

MORRIS Commissioner.

Pursuant to Chapter 80, K.R.S., in accord with § 1401, et seq., Title 42 U.S.C.A., Frankfort by appropriate ordinance accepted the provisions of the Acts. Steps were taken, including a survey resulting in demolition of 75 dwellings in a portion of the city well characterized as a "slum area," and in 1938 acquisition of land in a more desirable spot with erection of more suitable houses, later occupied by families of a low income group.

Appellant, conceiving it to be his legal duty, let it be known that he was proposing to list the real property, used as above stated for and valorem taxes. The Commission, of the opinion that the project constituted public property, used for a public purpose, sought to enjoin appellant from furthering his purpose, relying on the pronouncement of this court in Spahn v. Stewart, 268 Ky. 97, 103 S.W.2d 651, and certain sections of the Constitution relating to exemptions from taxation. A demurrer to the petition was overruled; appellant filed answer and counterclaim, the court sustaining the demurrer of appellee. Appellant did not plead further, and the court dismissed the counterclaim, and granted injunction. In a written opinion declaring the rights of parties, the chancellor declined to uphold any one of appellant's contentions, or the one raised by his counterclaim, that the court should advise appellant to list for tax purposes the bonds issued by the Commission.

Under the contract between the Federal Housing Authority and Commission, as is authorized by statutes and ordinance, Authority was to and did advance to Commission 90 per cent of total cost of establishment, $347,000, for which sum Commission issued bonds, Authority taking over same to the extent of its loan, the remainder passing into the hands of purchasers. The pleadings show that a proposed assessment would be on a basis of about $208,000 value; the prevailing rates of taxation for state, county and district purposes, upon the per $100 of valuation, would increase monthly rentals ($12.10 per unit) to $13.24, and if the property be subjected there would as a consequence follow application of the city rate of $2.25, increasing average rental to $15.49 per month, to say nothing of the result if taxing authorities should undertake to assess the project as omitted property.

Under the contract it was agreed that Authority would make annual contribution to Commission for maintenance, to the amount of approximately $11,000 upon condition that Commission would annually contribute 20 per cent of such amount, and that exemption from taxation would constitute such contribution. Up to this time the agreement has been observed. A failure of the contribution by Commission, as is provided, would work a forfeiture of right to Authority's contribution, resulting in an increase of average monthly rentals to more than $25.

Appellant's counsel concedes that the Spahn opinion, in so far as it upholds the power exercised by the Commission in condemning unsafe and unsanitary dwellings is fundamentally sound, but it is insisted that this court has never held that the bonds or the project property are exempt from taxation, or that if so held inferentially it is the only court which has so held. It was alleged that certain sections of the Constitution are being violated, which in the Spahn case were not brought to our attention or given consideration; these noted as sections 3, 60, 157, 158, 170, 171, 175 and 179, adding alleged violation of the 14th amendment to the Federal Constitution, based on the ground that owners of like properties, rented to persons of low income, are required to pay taxes.

The Spahn case has been referred to and the conclusions therein generally upheld by three other cases in our jurisdiction, and the combination of the four should be, and to our mind are conclusive of every question here raised, including that in respect of section 3 of the Bill of Rights. We refer to Jones v. City of Paducah, 283 Ky. 628, 142 S.W.2d 365; Douthitt v. City of Covington, 284 Ky. 382, 144 S.W.2d 1025, and City of Louisville v. German, 286 Ky. 477, 150 S.W.2d 931, 935, in which we concluded that the Louisville Housing project was "a work of purely public nature and a governmental function."

The belief that pronouncements in the named cases are conclusive is amply fortified when we note that more than forty opinions rendered by courts of more than twenty-five other jurisdictions, many following our Spahn case, have had the subjects before them, and in several, considered in addition to other constitutional objections, the question of exemption of bonds and physical properties, in which with a lone exception, such exemptions have been held valid. Some in the face of constitutional provisions (in respect of exemption) similar to ours, and in some more stringent.

The question here vigorously argued turns on construction and application of sections 170 of the Constitution which exempts from taxation "public property used for public purposes," and 171 exempting bonds of the state, counties, municipalities and certain taxing districts. If it be, as we are of opinion it has been, concluded that under these sections the property and bonds are exempt, then there is little need for consideration of the contention that there is here a "grant of exclusive, separate public emoluments, or privileges."

The question of bond exemption was presented and determined in our Spahn and other opinions, supported by ample authority for holding them exempt in Klein v. City of Louisville, 224 Ky. 624, 6 S.W.2d 1104, Bloxton v. State Highway Comm., 225 Ky. 324, 8 S.W.2d 392, and Hughes v. State Board of Health, 260 Ky. 228, 84 S.W.2d 52. This contention, as well as that with relation to Section 170 of the Constitution, is based on the broad assertion that the project property is not owned by the public, or used for public purposes, fully answered by the Spahn and other cases dealing with the subject, from this court, among which are Bellamy v. Board of Education, 255 Ky. 447, 74 S.W.2d 920; Board of Park Commissioners v. Speed, 215 Ky. 319, 285 S.W. 212; the Hughes case, supra, to which may be confidently added numerous cases from other jurisdictions later noted.

While in pleading appellant asserts violations of sections of the Constitution above noted, some are not presented in brief, or if so, rather incidentally, but due to the wide reaching effect of our decision on this important question, we shall briefly review. That the Commission is a public body carrying out "a work of purely public nature and a governmental function" (German case) is made manifest in cases cited above, and cases from other jurisdictions, which are entitled to weight. The contention that there is a violation of §§ 157 and 158 of the Constitution, or either, also appears to have been answered in our own cited cases dealing with the subject, and McDonald v. University of Kentucky, 225 Ky. 205, 7 S.W.2d 1046, Van Hooser & Co. v. University of Kentucky, 262 Ky. 581, 90 S.W.2d 1029, which together with Klein v. City of Louisville and Hughes v. State Board of Health, supra, hold that the credit of the municipality is not disturbed, since the bonds do not constitute a debt against the taxpayers of the municipality. The objection to lending of credit is well answered in Lambert, Mayor v Board of Trustees, 151 Ky. 725, 152 S.W. 802, Ann.Cas. 1915A, 180; Board of Trustees v. City of Lexington, 112 Ky. 171, 65 S.W. 350, and the later noted cases from the courts of Arizona, Arkansas, California, Louisiana, and others. The question of unauthorized delegation of power is concluded by the opinion in...