Williams v. City of Raceland

• Decision Date: 07 October 1932
• Parties: WILLIAMS v. CITY OF RACELAND et al.
• Court: Kentucky Court of Appeals

53 S.W.2d 370

245 Ky. 212

WILLIAMS v. CITY OF RACELAND et al.

Court of Appeals of Kentucky

October 7, 1932

Appeal from Circuit Court, Greenup County.

Suit for declaratory judgment and for injunction by W. H. Williams against the City of Raceland and others. From the judgment plaintiff appeals, and defendants cross-appeal.

Affirmed on plaintiff's appeal, and reversed, with directions, on defendants' cross-appeal.

A. V Pollock, of Greenup, for appellant.

John T Diederich, of Ashland, for appellees.

THOMAS J.

This is a declaratory judgment proceeding brought by appellant and plaintiff below, W. H. Williams, against the appellees and defendants below, the city of Raceland and some of its officers, to test the validity of a proposal by the city to construct, maintain, and operate a system of waterworks within the city, and to issue bonds to obtain the necessary funds therefor, pursuant to the provisions of chapter 133 of the Acts of 1926, as amended by chapter 92 of the Acts of 1930. The first one of them authorized cities of the second, third, and fourth classes to acquire a system of waterworks by issuing the bonds of the city but to be redeemable only from revenues derived from the operation of the plant, and authorizing the putting it in lien to secure the bonds and coupons for any deficiencies in the operating revenues from which the bonds and coupons were to be redeemed.

The act contains a provision that the debt so created by the issuing of such bonds shall not be one of the city, nor shall any of its municipal revenues in any manner be pledged or become liable for the payment of any bond, or any coupon, but that they shall be secured only by pledging the revenue arising from the operation, and by a lien on the plant. Other provisions were enacted looking to the carrying out of the primary purpose of the act, and to the enforcement of the scheme for which it provides, and prescribing certain regulations as a guaranty therefor.

The second statute (chapter 92, Acts of 1930) simply added to the classes of cities to which it applied, so as to embrace those of the fifth and sixth classes, and re-enacted the 1926 act as so amended. The latter is published on page 647 of the Session Acts of 1926, while the amendatory 1930 act is published on page 331 of the Session Acts for that year.

The city of Raceland is a city of the fifth class, and was given the authority under the 1930 amendatory act to acquire a waterworks system under the plan outlined in the 1926 act as so amended. In April, 1931, its council passed an ordinance to carry into effect the authority so given, and which provided for the issuing of bonds to the amount of $40,000 from the proceeds of which the waterworks plant was to be constructed. The ordinance followed the provisions of the statute and incorporated in it the form of bonds to be issued and which conformed to the statutes, by expressly providing that neither the bond nor any coupon was the obligation of the city, and that they should be redeemed from the income derived from the operation of the plant, which was also pledged for that purpose, and a lien was given on the plant to secure any deficiency of such income. The bonds were about to be issued, preparatory to the commencement of the construction of the plant, when plaintiff, a citizen and taxpayer within the city, brought this action against it, and certain of its officers whose duties related to the execution of the scheme, to enjoin the enforcement of the ordinance and to obtain a declaration of the rights of the city in the premises.

As grounds for the injunction, plaintiff averred in his petition that the 1930 statute, in so far as it authorized the construction or acquisition of a waterworks plant according to the provided plan, was repealed by chapter 109 of the Acts of 1932, which is on page 552 of the Session Acts of that year. That act amended sections 1, 2, and 19 of the 1926 act, and to which act only did its title refer; it being expressly mentioned therein that the enacted amendment of those three sections was for the purpose of extending "the provisions thereof [the 1926 act] to include the acquisition of sewerage systems within said cities." However, in the enacted substituted and amended sections, following the language of the 1926 act, which was confined to cities of the second, third, and fourth classes, the 1932 act adopted the same language employed in the 1926 act, without any reference to cities of the fifth and sixth classes, which, as we have seen, was incorporated into the 1926 act by the amendatory one of 1930. In doing so, the members of the 1932 session of the Legislature took no notice whatever, and made no reference to, the 1930 amendment giving the authority to adopt and appropriate the plan for acquiring waterworks provided for in the 1926 act, and treated the matter as if no amendment had ever been made to it, conferring the authority therein created upon cities of the fifth and sixth classes.

Evidently the members of the 1932 Legislature were not aware of the 1930 amendment, or, being aware thereof, they did not intend by chapter 109 of its acts to confer upon cities of the fifth and sixth classes the right to construct sewerage systems upon the same plan. But plaintiff contends that the 1932 amendment had the effect to repeal the 1930 one and to thereafter confine the authority given by the 1926 act to only cities of the second, third, and fourth classes as was true under that act when first enacted. But we do not agree with that contention. To begin with, the 1932 act expressly states in its title that the 1926 one is to be amended only in one particular, and which was "so as to extend the provisions thereof to include the acquisition of sewerage systems within said cities." There is nothing in the title thereto to indicate that the 1926 act was intended to be amended so as to take away from any class of cities the authority and privileges conferred by it, as amended by the 1930 act.

On the contrary, it is expressly stated in the title, as we have seen, that its only purpose was to extend the right and authority created by the 1926 act so as to include the acquisition of sewerage systems, and which had the effect to confer upon cities of the second, third, and fourth classes, not only the right to acquire waterworks systems under the enacted plan in the 1926 act, but to also acquire sewerage systems under the same plan. It left the 1930 act untouched and intact, and which continued the same authority to cities of the second, third, and fourth classes, as well as those of the fifth and sixth classes, to obtain waterworks systems under the enacted plan. But the 1932 act did confer authority on cities of the second, third, and fourth classes to also acquire sewerage systems under the same plan.

It is a universal rule, adopted and applied by all courts and announced by all text-writers, that repeals by implication are not favored and that they will not be decreed unless there is an irreconcilable contradiction between the repealing statute and the prior one, so as to create an inescapable inference that the Legislature intended to repeal the former statute by the enactment of the latter one. If the two statutes can be so construed as to reconcile the continued existence of both, then it is the duty of the court to so declare, and to adjudge that the latter one did not repeal the former one. Those principles relating to the enactment and construction of statutes are so primary that we deem it unnecessary to incumber the opinion with the citation of cases or texts so holding. It is also a guiding rule of courts in the...