ties for the purpose of paying salaries and ex- municipal authorities and the fiscal court penses as aforesaid. In case the fiscal court of shall fail to levy the tax, the salaries and said counties containing a city of the first and second class and the municipal boards of said expenses of the court shall be paid equally cities shall fail to levy a tax as aforesaid, the by the fiscal court and municipal authorities salaries and expenses provided for herein shall out of county and city funds raised for generbe paid equally by the fiscal court of said coun- al purposes, and that the city shall turn over ties and the municipal boards of said cities out of the county and city levy for general purposes to the county treasurer, to be disbursed unand in such event the municipal boards of said der the orders of the fiscal court, its proporrespective cities may turn over to the county tion of the expenses and salaries; in other treasurer their respective proportion of said salary and expenses to be disbursed by said words, each must pay one-half of the salaries county treasurer under orders of the fiscal and expenses. It is under this clause in subcourt.' section 21 that the fiscal court claims the

In 1915 Campbell county filed a petition against the city of Newport, a city of the second class, situated in Campbell county, in which was set out the appointment of juvenile officers and a stenographer by the county court of Campbell county for each of the years from June, 1908, to July, 1915, inclusive. It further set out that the salaries of these officers during these years had been fixed at a sum stated in the petition, and within the statutory limit, by the county judge of Campbell county, and that all of the salaries so fixed, which amounted to $23,000, had been paid by the fiscal court.

It further appears from the petition that no annual tax or any special tax was levied by the fiscal court for the purpose of paying these salaries, but they were paid out of the general funds in the custody of the fiscal court, which funds had been raised by taxes levied upon all the property in the county. It was also averred that the city council of Newport, or the commissioners of the city, had failed and refused to levy any tax upon the property in the city for the purpose of defraying the expenses of the juvenile court, and that the city had refused to contribute anything to the payment of these expenses. Therefore judgment was sought against the city for one-half of the amount paid by the fiscal court, viz. $11,500.

right to exact from the city of Newport onehalf of the salaries and expenses of the court, as no special tax was levied by either the

fiscal court or the city of Newport for the purpose of defraying the salaries and expenses of the court.

Whether the Legislature had power to require the city authorities, after having raised a fund by taxation upon city property for the purpose of defraying the expenses of a juvenile court, to turn this tax over to the county treasurer to be disbursed by him under orders of the fiscal court of the county, presents an interesting question that is not here directly involved, but closely related to it is the question: Can the county compel the city to pay one-half of the expenses incurred by the county in the conduct of this court? And this question is expressly presented for decision. Indeed, it is the only question in the case, and its disposition will require a consideration of the entire subject-matter of subsection 21.

[1] That the Legislature may authorize the establishment of juvenile courts has been settled in Marlowe v. Com., 142 Ky. 106, 133 S. W. 1137; Cullins v. Williams, 156 Ky. 57, 160 S. W. 733, and Com. v. Yungblut, Judge, 159 Ky. 87, 166 S. W. 808.

[2] Nor do we doubt the power of the Legislature to authorize the fiscal courts to raise A demurrer interposed by the city to this by a special tax imposed upon all the proppetition was sustained, and, the county de- erty in the county of Campbell, or to approclining to plead further, the petition was dis-priate out of its general funds raised by counmissed, and the county brings the case here. ty taxation, a sum sufficient to defray the exIt will be observed that the juvenile court penses of this court; as the control and diis a county institution, the county having rection of the court and the appointment of full control and supervision of all matters administrative officers is lodged in the county connected with it and the right to appoint authorities. It is equally plain, we think, and fix the salaries of all officers employed in that the Legislature might authorize the esconnection with its operation. The city au-tablishment of such courts by city authorithorities have nothing whatever to do with the management of this court. It will further be noticed that under subsection 21 the fiscal court of each county containing a city of the first or second class, and the municipal boards of such cities, are authorized to levy an annual property tax of not less than onefourth of a cent on all property in their respective cities and counties, and that the sum derived from any tax levied by the municipality must be turned over to the county treasurer to be disbursed by him under orders of the fiscal court.

ties and give the city the right to raise by a special tax imposed upon the property in the city, or appropriate out of its general funds raised by taxation, such sum as might be necessary to defray the expenses of the court if the court and its officers were under the control of the city authorities. But the theory on which this suit was brought is that authority for its maintenance is furnished by so much of subsection 21 as reads:

"In case the fiscal court of said counties containing a city of the first and second class and the municipal boards of said cities shall fail to levy a tax as aforesaid, the salaries and expenses This subsection also provides that, if the provided for herein shall be paid equally by the

fiscal court of said counties and the municipal, boards of said cities out of the county and city levy for general purposes and in such event the municipal boards of said respective cities may turn over to the county treasurer their respective proportion of said salary and expenses to be disbursed by said county treasurer under orders of the fiscal court."

expenses of this office after it had once been taxed by the county to pay its proportionate part of them.

In support of this proposition counsel for the county argues that the Legislature has authority to create separate or special tax districts within the limits of a county and to provide for the levy of a special tax in such districts. The correctness of this propo

And if this part of the section is authorized by the Constitution, the claim of the county must be sustained, or otherwise the sec-sition we have no disposition to question, betion in so far as it requires the city to con- cause the Legislature has ample power, often tribute a portion of its funds would have no exercised, to create special districts compriseffect. Therefore the question is: Did the ing a part of a county for the purpose of proLegislature have power to invest the county moting some public improvement from which with authority to compel the city to defray, the people and property in such special disout of funds raised by taxation for city pur-trict may derive benefits applicable to that poses, a portion of the expense of conduct-district alone, and to empower the people of ing a court which is entirely under the con- the district to levy a tax for the purpose of trol and supervision of the county authori- defraying the expenses of this public imties, and this, too, after the city as a part of provement. Examples of this character of the county has once been taxed for this pur-legislation are to be found in the creation of pose; or, in other words, the right to give the county authorities power to tax the property located in the city for the purpose of raising funds to defray a part of the expense of this court? We say this because, if the county The concession, however, of this power to can maintain an action like this and secure a the Legislature is far from conceding to it judgment against the city, it would neces-authority to confer on the fiscal court of a sarily follow that it could compel the city authorities to levy a tax sufficient to satisfy county power to levy a special tax or any tax the judgment, unless the city saw proper to pay the judgment out of a general fund raised by taxation, and if it did this the result would be precisely the same as if a special tax had been levied for the purpose of satisfying the judgment; so that, looking at the matter from any viewpoint, the judgment must at last be satisfied with money raised by taxation imposed on the property in the

city.

In considering this question it should be kept in mind that although the salaries and expenses of this court were paid by the fiscal court of the county out of its general fund, this general fund was created by a tax levied upon the property of the whole county, including, of course, the property in the city of Newport. It therefore appears that the property in the city of Newport has already paid a part of the salaries and expenses of this court, and if this property in the city is now required to bear the burden of paying one-half of these salaries and expenses, it is obvious that the property in the city would be twice taxed for the same identical purpose and by the same identical authority, the fiscal court of Campbell county.

school districts, road districts, and perhaps other classes of districts that have been set apart and authorized to levy special taxes for special purposes peculiar to the district.

on the property within a city for the purpose of defraying the salaries and expenses of officers appointed by and under the entire control and supervision of the fiscal court.

If the fiscal court of Campbell county may levy a special tax on the property in the city of Newport for the purpose of defraying the expenses and salaries of the juvenile court, the county authorities could likewise be authorized by the Legislature to levy a special tax upon the property in the city of Newport for the purpose of defraying, in whole or in part, the salaries and expenses incident to the conduct of other offices created by or under the control of the fiscal court or the county authorities, and the result would necwould find themselves subjected to taxation essarily be that property owners in the city by taxing authorities selected by another and distinct political subdivision and the taxes they had paid administered and disbursed by agencies not chosen by them and over whose conduct they could exercise no control.

To concede to the Legislature power such as is here claimed would recognize its right to violate the fundamental and ancient principle in our governmental policy that taxation and representation must go together as nearly as practicable, a rule that was laid down long before constitutional government was established, and one that has never been seriously departed from, although it may not be found expressed in the words of any written constitution. The theory upon which

As the city authorities of Newport have no voice in determining the amount of salaries that should be paid or expenses incurred in the conduct of this court, or in the selection of its officers for whose benefit these salaries were paid and expenses incurred, it would appear at first blush as a most extraordinary grant of power that the Legislature our whole system of government rests is that attempted to confer on the county of Campbell when it gave it authority to in effect tax

each political subdivision or taxing district of the state shall have the right to levy its

select and pay its own officers without the probation officers are confined very largely to Interference of any other political subdivi- city districts, and many sound reasons might sion, and to allow one political subdivision be found to justify a tax in cities to support of the state, for example, a city or county, to these institutions. But this does not warrant determine for another city or county what the county in putting a special tax or a speofficers it should have or what salaries or cial burden on the city to support them. compensation they should be paid or what taxes should be raised for the purpose of defraying the expenses of such officers would be an intolerable as well as an unheard-of burden to permit one taxing community to put on another taxing community. It is, we think, entirely beyond the power of the Legislature to impose such a burden in such a manner on any taxing community without its consent. It would be taxation without representation in its most offensive form and entirely inconsistent with our whole scheme of local self-government. The principle of local self-government is firmly fixed in our institutions, and one of the chief advantages and privileges of such government is that there is reposed in the people composing it the right to choose their own officers, manage their own domestic affairs, and raise and disburse their own taxes. A thorough consideration of this subject may be found in People v. Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202, in which Justice Cooley, speaking for the court, denied the Legislature the power to thus interfere in local community concerns. Other cases expressing the same general views are State v. Edwards, 42 Mont. 135, 111 Pac. 734, Ann. Cas. 1912A, 1063; People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103; Vallelly v. Board of Park Commissioners of Grand Forks, 16 N. D. 25, 111 N. W. 615, 15 L. R. A. (N. S.) 61.

It is, however, said in answer to these objections that in the administration and en

forcement of the law relating to delinquent, homeless, and dependent children a large part of the expense incident thereto and the benefits derived therefrom are created by the social conditions that exist in the congested territories of cities, and therefore there is no injustice or inequality in requiring cities to bear a larger share of the expense attendant upon the establishment and operation of these juvenile courts than is imposed on the rural communities where the conditions are

such that there is little necessity for the exercise of the authority of juvenile courts or the employment of probation officers.

But this argument does not meet or answer the objection that one municipal subdivision, for example, a county, cannot levy a tax upon the property located in another municipal subdivision, for example, a city, without its consent, or take the money raised by such a tax and use it in administering a department or office in the control of the authority imposing the tax. It will, of course, be readily admitted that social conditions in cities, and large cities especially, are so very different from those existing in rural districts that the uses and benefits of juvenile courts and

The Legislature, as we have said, has authority to provide for the establishment of juvenile courts in the county and the creation of probation officers to perform the duties incident to these courts, as well as to place in the hands of the county authorities the right to control the court, appoint the officers, fix their salaries, and levy a tax upon the property in the county to defray the expenses of the court and its officials. When this is done the property in the city must, of course, bear its equal share of the expense and burden in connection with property in other parts of the county. The Legislature might also, if it saw proper so to do, provide, as we have said, for juvenile courts and probation officers to be appointed by city authorities and paid by special tax levied on the property in the city. But the Legislature cannot, as we think, empower the fiscal court with authority to subject the property in the city to a special and extra tax for the purpose of defraying the expenses of a juvenile court that is purely a county institution, after the property in the city has once paid its fair share of the tax necessary to the conduct of this court.

The Constitution has divided the cities of the state into classes, and the Legislature in the exercise of its authority has enacted laws for the government of these several classes of cities and authorized them to adopt ordinances regulating their domestic affairs. These cities for governmental purposes are distinct political bodies whose powers are limited to the confines of the city, and no one would think it was within the competency of the Legislature of the state to authorize or permit these cities to levy taxes upon property outside of the city limits for the purpose of establishing and conducting some city office from or through which the rural community might derive some benefit or for any other purpose, and yet there would be no difference between giving to cities this power and giving fiscal courts the power to impose on cities a distinct tax.

As illustrating the extent to which the Constitution has committed to local political subdivisions the right to control for themselves the amount of tax they would levy and the purpose to which the funds so raised should be devoted, reference may be had to section 181a of the Constitution, providing in part:

"The General Assembly shall not impose taxes for the purposes of any county, city, town or other municipal corporation, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect taxes.'

Under this section even the General Assembly is denied the right to impose taxes for the purposes of any local subdivision, and,

"Taxes shall be levied and collected for public purposes only. They shall be uniform upon all property subject to taxation within the territorial limits of the authority levying the tax.”

this being so, it is obvious that the General stitution and of the general governmental Assembly could not delegate to another and principles that forbid one local authority to smaller political subdivision a greater power levy a special tax on another, but is in violathan was possessed by itself. The Legis- tion of section 171 of the Constitution, which lature under section 181a may exercise the provides in part: authority expressly granted and confer on counties, cities, towns, and other municipal | corporations the power to assess and collect taxes for themselves, but it cannot delegate to one municipality or taxing district the Here the authority levying the tax is the power to tax another, or confer on one polit- fiscal court of Campbell county, and the ical subdivision the authority to lay any kind territorial limits of its authority are the of a burden upon another, unless the munic-boundary lines of Campbell county. So that, when the fiscal court undertakes to levy ipality or taxing district so burdened is a part of the territory in which the larger a property tax in that county, it must be subdivision may levy a uniform tax. In such uniform upon all property subject to taxation within the county. The fiscal court cases the grant of power to the larger municipality to assess property and levy taxes cannot exempt from the payment of the tax within the territorial limits thereof includes, property in any part of the county, nor can of course, its right to assess property and it impose upon property in any part of the levy taxes in all parts of the territory, al- county a greater rate of taxation than is though there may be in such territory smaller imposed upon all other property in the county. In other words, its power in the assessmunicipalities or taxing districts. When, ment and collection of taxes must be unihowever, such a tax is laid, it must be uniformly exercised upon all property within form upon all the property in the territory the county. levying the tax.

Taxation that is not uniform is necessarily That the General Assembly, while hav- unequal and amounts to double taxation, ing full power to authorize local communities whether the lack of uniformity or the apto impose taxes on themselves for local pur-pearance of duplication is exhibited in the poses, may not itself exert this power by un- exemption of some property from the tax dertaking to levy a tax for local purposes, or in taxing twice for the same purpose a was held in McDonald v. City, 113 Ky. 425, part of the property subject to the tax. Dou68 S. W. 413. In that case the Legislature ble taxation and lack of uniformity are each enacted a law directing cities of the first alike vicious and unjust and opposed to the class to levy a tax for the purpose of main- principles of equality and fairness upon taining a fireman's pension fund, whether which the merit of our whole scheme of taxasuch cities desired to do so or not, and in tion depends. holding that the Legislature had not the power to do this the court said:

matter.

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In the present Constitution there is a declaration that taxation must be uniform, but no direct prohibition against double taxation. But a prohibition against double taxation was hardly necessary, because there cannot be such a thing as double taxation where the taxation is uniform.

[4] "Double taxation" means taxing twice, for the same purpose, in the same year, some of the property in the territory in which the tax is laid without taxing all of

"Section 181 [of the Constitution] was intended to take away from the General Assembly the power to impose taxes upon towns and cities, and to confer this power upon the local authorities. In the act in question they have not only imposed a tax upon the city of Louisville, but they also fix the levy and purpose to which the money is to be applied. No discretion is left in the council with regard to the The Constitution has taken from the General Assembly the power to impose taxes for purely local concerns, and whilst they can prescribe the purposes for which such it. If all the property in the territory upon taxes may be levied, and fix a maximum rate therefor, unless they are necessary for the maintenance of the municipality, or involve the interest of the general public outside of such municipality, their assessment and collection are left to the discretion of the local authorities."

[3] This is a much stronger case against the asserted right of one taxing authority to impose upon another taxing authority without its consent the duty of levying a tax than is presented by the statute relating to juvenile courts. No constitutional authority can be found, even by indirection, that would justify the exertion of the power sought to be exercised by the fiscal court in the case we have. The attempt to confer this authority on fiscal courts is not only in contraven

which the tax is imposed is taxed twice and for the same purpose and in the same year without discrimination or exemption, this is not double taxation in the sense that such taxation is prohibited, because, within constitutional limits, if the tax is uniform, the amount of it is in the discretion of the taxing authorities, and it may all be levied at one time, or it may be the subject of several levies. Uniformity in taxation and double taxation are wholly inconsistent. One cannot exist where the other is in force. And so if our constitutional scheme of uniform taxation is observed, there can be no double taxation. Cooley on Taxation, vol. 1, p. 394.

In this connection it is worthy of notice that, while there was no command in our

be uniform or prohibition against double found expression, it has been many times taxation, these principles had become so deeply imbedded in the fundamentals of the law that the courts of this state, before the adoption of the present Constitution, as well as since, have consistently held that taxation that lacked uniformity, or that was open to the objection that it was double taxation, was so obnoxious that it could not be sustained.

"Section 171 authorizes the imposition of an ad valorem tax upon all the property in the "The distinction between constitutional taxa-state for state purposes, and in counties, cities, tion and the taking of private property for pub- towns, and taxing districts for local purposes. lic use by legislative will may not be definable This ad valorem property tax, whether imposed with perfect precision. But we are clearly of or levied for state, county, municipal, or local the opinion that, whenever the property of a purposes, must be uniform within the territory citizen shall be taken from him by the sover- in which it is imposed. If it be for state pureign will, and appropriated, without his consent, poses, it must be exactly the same in all parts to the benefit of the public, the exaction should of the state; and uniformity must exist when not be considered as a tax, unless similar con- it is authorized to be levied by local authorities tributions be made by that public itself, or shall for local purposes." be exacted rather by the same public will from such constituent members of the same community generally as own the same kind of property. Taxation and representation go together. And representative responsibility is one of the chief conservative principles of our form of government.