McDonald v. City of Louisville.

called the "Deficit Tax," the levy of a deficit tax is left to the sound discretion of the general council.

2. Const., section 181, providing that "the General Assembly shall not impose taxes for the purpose of any county, city or other municipa! corporation, but may by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes," has taken from the General Assembly the power to impose taxes for purely local purposes, and while that body can prescribe the purposes for which such taxes may be levied, and fix a maximum rate therefor, the assessment and collection of taxes are left to the discretion of the local authorities; and therefore the amendment of March 16, 1900, to the charter of cities of the first class is unconstitutional, to the extent that it requires the general council to levy a specified tax to create a fund for pensioning crippled and disabled members of the fire department and the families of deceased members.

MCDONALD & MCDONALD, FOR APPELLANT.

POINTS AND AUTHORITIES.

1. Municipalities have no inherent power to levy taxes, and such power as is delegated to them, to do so, by the Legislature, must be strictly construed and strictly followed; while on the other hand, the Legislature has, in the absence of constitutional restrictions, unlimited power to prescribe the mode in which municipal taxes shall be levied. Cooley on Constitutional Limitations, 227; Kniper v. City of Louisville, 7 Bush, 599; Caldwell v. Rupert, 10 Bush, 79; Wheatley v. City of Covington, 11 Bush, 18; Johnson v. City of Louisville, 11 Bush, 527; Judge of Campbell Co. Court v. Taylor, 8 Bush, 206; City of Paris v. Moran, 5 Ky. Law Rep., 333; Constitution of Ky. secs. 156, 181; Cooley on Const. Lim., 282-3; 25 Am. & Eng. Ency. of Law, 595; Kentucky Statutes, sec. 2981.

2. Section 2981 as amended by Act of March 20, 1900, requiring the compulsory levy of a tax for the several purposes . therein named, is not in contravention of section 181 of the Constitution, and must be obeyed by the general council of the city of Louisville in its levy of taxes. 10 Am. & Eng. Ency. of Law, (1st ed.) 175; Neary v. P. W. & B. Ry. Co. (Del.) 9 At. Rep., 411; South Cov. & C. St. Ry. Co. v. Town of Bellevue, 20 Ky. Law Rep., 1184; Paducah St. Ry. Co. v. County of McCracken, 20 Ky. Law Rep., 1294; Kentucky Statutes, secs. 4077, 2853, 2816, 2969, 3219, 3469, 3595.

3. Firemen's pension fund, act of March 16, 1900. If it should be held that section 2981 is unconstitutional because it is mandatory in its provision that the council shall levy a tax for all

McDonald v. City of Louisville.

the purposes specified, then the whole act must be considered as void, since the various parts of it are not severable without doing violence to the intention of the Legislature, and as a consequence, it can afford no authority to the general council to levy taxes for any of the purposes enumerated. Cooley on Const. Lim.. 210, 211.

4. The option to levy or not to levy a deficit tax given to the general council by section 2982 (as amended by act of March 16, 1898) was impliedly repealed by the act of March 20, 1900, amending section 2981, and making the levy of the deficit tax mandatory, since the two acts are utterly inconsistent. Sedgwick on Construction of Stat. & Const. Law, 104.

JOHN MASON BROWN, FOR APPELLANT.

CONTENTIONS AND AUTHORITIES FOR APPELLANT.

1. The act of March 20, 1900, amending or repealing section 2981, Kentucky Statutes is mandatory, and makes it necessary to the validity of an ordinance passed in pursuance thereof that the levy of city taxes shall be subdivided among all the funds named therein. The item designated as a "Deficit Tax" must be included in the ordinance. Session Acts, 1900, Ch. 16, page 53.

2. Municipalities being mere agencies of the State possess no power save those expressly delegated or necessarily implied. Any doubt arising out of the terms of the grant must be resolved in favor of the public as against the taxing power. 15 Am. & Eng. Ency. Law, pp. 989, 1041, 1047; Clark v. Davenport, 14 Ia., 494; Merian v. Moody, 25 Ia., 163; State v. Smith, 31 Ia., 493; Keokuk v. Scroggs, 89 Ia., 447; Logan v. Pyne, 43 Ia., 524; Burlington v. Kellar, 18 Ia. 59; Bloom v. Xenia, 32 Ohio St., 461; Minturn v. LaRue, 23 How. (U. S.), 435; Thompson v. Lee Co., 3 Wal. (U. S.), 327; Thomas v. Richmond, 12 Wall. (U. S.), 349; Cooley on Taxation (2d ed.), pp. 76, 280, 678; Dillon on Municipal Corporations, vol. 1, p. 118; Cooley on Constitutional Limitations, pp. 227, 231, 599; Stetson v. Kempton, 13 Mass., 272; Abendroth v. Greenwich, 29 Conn., 356; Webster v. Harwinton, 32 Conn., 151; Youngblood v. Sexton, 32 Mich., 406; Leitchfield v. Vernon, 41 N. Y., 123; Spencer v. Merchant, 125 U. S., 345; Ger. Sav. Bank v. Burlington, 27 S. E. Rep., 846; Caldwell v. Rupert, 10 Bush (Ky.), 179; Wheatley v. Covington, 11 Bush, 18; Johnson v. City of Louisville, 11 Bush, 527; Kniper v. City of Louisville, 7 Bush, 593.

3. It is clearly within the power and province of the Legislature to designate in mandatory terms the purposes for which taxes shall be levied by cities. 25 Am. & Eng. Ency. Law, 595; People v. Detroit, 28 Mich., 228; Newman v. Scott Co., 5

M Donald v. City of Louisville.

Snead (Tenn.), C95; State v. Franklin Co., 35 Ohio St., 458; State v. Tappan, 29 Wis., 664; Dillon on Municipal Corporations, vol. 1, p. 126; Dillon on Municipal Corporations, vol. 2. p. 731; Lott v. Ross, 38 Ala., 156; Sewell v. St. Paul, 20 Minn., 511-520; Chicago v. Wright, 22 Ill., 192; Leach v. Cargill, 60 Mo., 316; Cooley on Taxation (2 ed.), 679; Hilliard on Taxation, 318; Cooley on Constitutional Limitations, pp. 282, 283; Guilford v. Supervisors, etc., 18 Barb. (N. Y.), 615; New Orleans v. Clark, 95 U. S., 644; Sinton v. Ashbury, 41 Cal., 525:

4. The ordinance concerning the taxes for the fiscal year 1902 not being in strict accord with the statutory requirement and no provision being made for the item known as "Deficit Tax," the ordinance is ipso facto null and void. 17 Am. & Eng. Ency. Law, pp. 236, 248; Ex parte Kuback, 45 Cal., 274; Burlington v. Kellar, 18 Ia., 65; Parid v. Graham, 33 Mo., 94; Collins v. Hatch, 18 Ohio, 523; Schenley v. Com., 36 Pa. St., 29; State v. Clark, 54 Mo., 17; Adams v. Mayor, etc., of Albany, 29 Ga., 56; Taylor v. Griswold, 14 N. J., 222; Rothschild v. Darien, 69 Ga., 503; Metcalfe v. St. Louis, 11 Mo., 102; State v. Noyes, 30 N. H., 279; Clarke v. Rochester, 28 N. Y., 605; State v. Welch, 26 Conn., 215; White v. Bayonne, 49 N. J. L., 311; Newton v. Belgar, 143 Mass., 598; Lozier v. Newark Board of Health, 48 N. J. L., 452; State v. Brittain, 89 N. Car., 574; Cape Girardeau v. Riley, 72 Mo., 220; Com. v. Goodnow, 177 Mass., 114; Katzenberger v. Lawo, 25 Amer. St. Rep., 681; Cooley on Constitutional Limitations, 239; Wood v. Brooklyn, 14 Barb (N. Y.), 425; Petersburg v. Metzger, 21 Ill., 205; Southport v. Ogden, 23 Conn., 128; Andrews v. Insurance Company, 37 Me., 256; Canton v. Nist, 9 Ohio St., 439; Carr v. St. Louis, 9 Mo., 191; Com. v. Erie, & N. E. R. R. Co., 27 Pa. St., 339; Conwell v. O'Brien, 11 Ind., 419; March v. Com., 13 B. Mon., 25; Baldwin v. Green, 10 Mo., Kniper v. City of Louisville, 7 Bush, 599; Sedgwick on Stat. and Const. Law, 466; Caldwell v. Rupert, 10 Bush, 182; Johnson v. City of Louisville, 11 Bush, 527; Judge Campbell Co. Court v. Taylor, etc., 8 Bush, 206; City of Paris v. Moran, 5 Ky. Law Rep., 333.

5. The act of March 20, 1900, amending section 2981, Kentucky Statutes, in no way violates the provisions of section 181, present Constitution, as no rate or sum is designated or imposed, and only the purpose or item is prescribed. Present Constitution, sec. 180 and sec. 181; Bouvier's Law Dictionary, (ed. 1897), p. 1093; Rapalje & Lawrence's Law Dict. vol. 2, p. 1253; Kentucky Statutes, sec. 4077; South Covington, etc., Ry. v. Bellview, 30 Ky. Law Rep., 1184.

McDonald v. City of Louisville.

HENRY L. STONE, CITY ATTORNEY, FOR APPELLEE.

STATEMENT.

This action was brought by appellant, E. L. McDonald, for himself and all others similarly situated, to obtain an injunction against the appellee, City of Louisville, enjoining and restraining the collection of ad valorem taxes for the fiscal year ending August 31, 1902, under the ordinance made part of the petition levying taxes for said fiscal year, passed by the general council and approved by the mayor December 27, 1901.

The original petition relies solely upon the omission, failure, or refusal of the general council to levy a deficit tax, while the amended petition relies on the omission, failure, or refusal of the general council to levy a tax for the firemen's pension fund.

The court below refused to grant appellant the injunction prayed for, sustained appellee's demurrer to the petition as amended, and dismissed the action. From this judgment appellant prosecutes this appeal.

1. It is not alleged in appellant's petition that there was any necessity for the levy of a deficit tax for the fiscal year ending August 31, 1902. By the express provision of section 2982, Kentucky Statutes, it is only in case "less than ninety-five per cent. of the estimated revenue shall be collected," that "any deficiency within ninety-five per cent. may be provided for in the levy of the next year, and shall be called the deficit tax." It must be assumed that the estimated revenues for 1901 to the extent of ninety-five per cent. had been collected, when the levy ordinance for 1902 was passed by the general council and approved by the mayor, in the absence of an averment to the contrary in appellant's petition.

FIREMEN'S PENSION FUND.

2. The amended petition relies on an act pertaining to the Firemen's Pension Fund, approved March 16, 1900 (Sess. Acts, 1900. p. 23), in the seventeenth section of which this clause

occurs:

"There shall be levied and set apart by the general council of cities of the first class each year one-half of one per centum on each one hundred dollars of value of the taxable property in said cities for said year as a fund for the pensioning of crippled and disabled members of the fire department, and of the widows and dependent children under the age of sixteen years, and dependent fathers and mothers of deceased members of the fire department of said cities."

No plainer violation of the prohibition in section 181 of the

McDonald v. City of Louisville.

State Constitution could have been made by legislative enactment.

"The General Assembly shall not impose taxes for the purposes of any city, . . . but may by general laws confer on the proper authorities thereof the power to assess and

collect such taxes."

.

THE OTHER LEVIES MADE ARE LAWFUL.

3. But even if all the other contentions of appellant's counsel were correct, with respect to the duty of the general council to levy a "deficit tax," and a tax for the firemen's pension fund, and that body had omitted, failed or refused to discharge such duty, certainly the levies made by the ordinance of December 27, 1901, being within the statute and such levies as are provided for and ought to have been made, are not invalid, but collectible by law. The remedy, if these two omitted levies should be made, would be by mandamus against the general council, compelling that body to make a levy for these two purposes, which it had failed or refused to make, when the law required the same to be made. In other words, the appellant, in any event, on his own showing has mistaken his remedy if he has one at all. The levies made are legal, and ought to have been made, and will not be disturbed by a court of equity, aside from the question as to whether additional levies should be made or not.

For the reasons urged, and under the statutes and authorities referred to, I respectfully submit that the court properly refused the injunction prayed for, sustained appellee's demurrer to the petition as amended, and dismissed the appellant's action.

AUTHORITIES CITED.

State of Connecticut ex rel. Bulkley v. Williams, Treasurer of Glastonbury (68 Conn., 131) 48 L. R. A., 465; People, ex rel. Le Roy v. Hurlbut, 24 Mich., 44 (9 Am. Rep., 103); People, ex rel. Park Comrs. v. Detroit, 28 Mich., 228 (15 Am. Rep., 202); People v. Lynch, 51 Cal., 15, 21 Am. Rep., 677; State, ex rel. Atty. Gen. v. Moores, 55 Neb., 481 (41 L. R. A., 624. 76 N. W., 175); State, ex rel. Simeral v. Seavey, 22 Neb., 454 (35 N. W., 228); Evansville v. State, ex rel. Blend, 118 Ind., 426 (4 L. R. A., 93) (21 N. E., 267); Livingston v. Wider, 53 Ill., 135; Wider v. East St. Louis, 55 Ill., 135, Ill. Con. Art., 9, sec. 9; Wetherel v. Dinvine, 116 Ill., 631 (5 N. E., 596; 8 N. E., 788): Speed v. Dertoit, 100 Mich., 92 (58 N. E., 638).

4. Kentucky Statutes, section 2981 is directory only and