Wheeler v. B. of Com'Rs. City of Hopkinsville
| Decision Date | 21 October 1932 |
| Citation | 245 Ky. 388 |
| Parties | Wheeler v. Board of Com'rs of City of Hopkinsville. |
| Court | United States State Supreme Court — District of Kentucky |
4. Evidence; Statutes. — In case language of statute is ambiguous or apparently contradictory, title may be resorted to as well as legislative journals, but not parol testimony or other evidence dehors the journals.
5. Municipal Corporations. — 1932 act, amending certain sections of 1926 act authorizing cities of second, third, and fourth classes to acquire waterworks system without pledging their own credit, manifested legislative intention to preserve 1926 act intact, to confer on such cities power to acquire by same means sewerage system, and to withhold such additional power from cities of fifth and sixth classes (Acts 1932, c. 109; Acts 1926, c. 133; Acts 1930, c. 92).
Acts 1926, c. 133, was the original act. Acts 1926, c. 733, was amended by Acts 1930, c. 92, which conferred on cities of fifth and sixth classes the same powers with respect to the acquisition of waterworks, and re-enacted, except for the insertion of the words "fifth and sixth" at the appropriate places, Acts 1926, c. 133, in haec verba. Acts 1932, c. 109, made no reference to Acts 1930, c. 92, but amended Acts 1926, c. 133, by re-enactment of certain sections with the added provision with respect to the acquisition of sewerage plants. Acts 1926, c. 133, related only to cities of the second, third, and fourth classes, and the same thing is true of Acts 1932, c. 109. The Legislature regarded both Acts 1926, c. 133, and Acts 1930, c. 92, as in force, the one as being applicable to cities of the second, third, and fourth classes, and the other to such classes and to the fifth and sixth classes.
6. Statutes. — Statute without express repealing clause may repeal previous statute by implication, provided two statutes are so irreconcilably repugnant that both of them cannot so exist.
7. Waters and Water Courses. — 1930 act, without repealing clause, which re-enacted 1926 act authorizing cities of second, third, and fourth classes to acquire waterworks without pledging their credit, and extended same power to cities of fifth and sixth classes, held not to have impliedly repealed 1926 act (Acts 1930, c. 92; Acts 1926, c. 133).
8. Waters and Water Courses. — 1930 act 1926 act authorizing acquistion of waterworks without pledge of municipal credit, which expressly provided that it should not include, alter, amend, or repeal any other statute, held to express legislative intent to continue in force all prior statutes on subject (Acts 1930, c. 92; Acts 1926, c. 133).
9. Waters and Water Courses. — Where 1932 act granted power to fifth and sixth class cities to acquire waterworks without pledge of municipal credit, but left in force 1926 act conferring such powers on second, third, and fourth class cities, 1932 act could adopt, by amendment of 1926 act, plan to confer power on second, third, and fourth class cities alone to acquire in like manner sewerage system (Acts 1932, c. 109; Acts 1926, c. 133; Acts 1930, c. 92).
10. Municipal Corporations. — Where ordinance left city free to use sewerage system or not, and to discontinue its use at any time, paying only for such use as it should make of such system, no invalid debt was created in violation of Constitution (Const. sec. 157).
Appeal from Christian Circuit Court.
JOHN C. DUFFY for appellant.
JAMES BREATHITT, Jr., and GEORGE W. MEUTH for appellee.
Affirming.
At its 1926 session the General Assembly of this commonwealth enacted chapter 133 on page 647 of the Session Acts for that year. It created a plan whereby cities of the second, third, and fourth classes in this commonwealth might acquire a waterworks system by issuing its bonds and pledging only the revenues to be derived from the acquired utility, and the plant itself, for the payment of interest on the bonds, and for their final redemption. It expressly provided that none of the general revenue of the city should be devoted to the payment of either principal or interest of the bonds that might be issued, nor should the municipality in any manner be obligated therefor. By implication, possibly the city would be obligated to expend the proceeds of the bond issue for the acquisition of the utility and to supervise and manage its operation after its acquisition in a manner to derive revenue from which, according to the apportionment thereof, the interest and the principal of the bonds should be met when due, and also to fix a sufficient rate for the service, to maintain the operation of the plant, its repairs, for proper extension, and to raise sufficient revenue to pay the bonds and interest as indicated. But no financial obligation was provided for by the municipality, and, of course, when the bonds should finally become extinguished, the lien against the plant would be released and the city become the owner thereof.
In 1930 the Legislature enacted chapter 92, p. 331 of the Session Acts of that year. Its title refers to the 1926 act and to its title, and states that the 1930 act was for the purpose of inserting in the 1926 one, in certain designated sections, the words "fifth and sixth," so as to make the provisions of the original 1926 act applicable to cities of the fifth and sixth classes, as well as to those of the second, third, and fourth classes, as originally enacted. Such changes in the 1926 act by the 1930 one are the only ones intended to be made in the prior act, as is expressly indicated in the title of the latter. However, the 1930 act re-enacted in haec verba the 1926 one, with the insertion at the appropriate places of the words "fifth and sixth," thus making the two acts identical, with the exception that the latter one embraced fifth and sixth class cities as well as those of the second, third, and fourth classes.
At its 1932 legislative session the General Assembly enacted chapter 109, page 552, of the Session Acts of that year, the title to which reads: "An act to amend and re-enact Sections 1, 2, and 19 of an act entitled, `An Act to authorize cities of the second, third and fourth class, to acquire water works and to issue bonds, therefor, payable from the revenues of such works,' being Chapter 133 of the Acts of the General Assembly of 1926, so as to extend the provisions thereof to include the acquisition of sewerage systems within said cities." The body of that act amends and reenacts the sections of the 1926 act, referred to in the title, by incorporating therein the additional public utility of sewerage plants, thereby enabling cities of the second, third, and fourth classes to acquire such utilities under the same plan provided for the acquisition of a waterworks system as created by the 1926 act. No reference to or mention of the 1930 act is made in the 1932 one, either in its title or in its body, and which indicates one of two things: (a) Either that the Legislature entirely overlooked it; or (b) that its members were convinced that the 1930 act did not repeal the 1926 one, and that it did not intend to extend the privilege and authority to cities of the fifth and sixth classes to acquire sewerage systems under the indicated plan.
The city of Hopkinsville, Ky., is one of the third class, and its legislative body enacted an ordinance for the acquisition of a sewerage system within that city under the plan authorized by the 1926 act, as amended by the 1932 one. The ordinance excludes the incurring of any pecuniary liability of the city for the redemption of the proposed bonds, or the payment of any interest thereon, by expressly so providing both in the ordinance and the bond proposed to be issued. Both of them expressly provide that such obligations shall be discharged only with the revenues to be derived from the operation of the plant, and further prescribes that the city itself shall pay for its use of the sewers when constructed the same rates as any of its citizens. But neither the city nor any of its citizens are obligated to accept the service of the sewerage system, leaving both of them the option to decline to do so. Therefore both the city as well as any citizen thereof become obligated to pay the rates only for the time that either of them takes advantage of the benefit.
Before any of the contemplated bonds were issued, this declaratory judgment action was filed in the Christian circuit court by appellant, a citizen and taxpayer in the city of Hopkinsville, Ky., against its board of commissioners and the members thereof to test the legality of the contemplated action. In the petition it was averred that the 1932 act was invalid because, as alleged, it violated in a number of named particulars the provisions of section 51 of our Constitution, and, further, that the 1926 act () was repealed by the 1930 act, and that the sections of the ...
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