Sivut kuvina

county creditors might acquire a preference over the plaintiff in the collection of their claims. The prayer of the plaintiff was that a mandamus issue whereby the respondent Sparks, as county judge, should be required to make the levy, and that this should be done in time for the levy to go in the current tax lists of 1902 (stating the particulars of the proposed directions), and "that the said county judge, sitting as the county court aforesaid, be commanded and directed in said writ to order that the present sheriff of said county, W. D. Blackwell, if he be then in office, give bond, qualify, and proceed to collect said levy; if the said Blackwell be not in office at the time said levy is ordered, that the officer or person acting in his place as sheriff be ordered to qualify, give bond, and proceed to collect said levy, and to pay over to the plaintiff the amount of his judgment and costs, and the balance, if any, to be held subject to the orders of said defendant county court; and, in the event that the said sheriff, Blackwell, or other officer taking or acting in his place, shall fail or refuse to give bond, qualify, and proceed to collect said levy, that the said defendant county court be ordered to forfeit the office of said sheriff or other officer, remove him from office, and to continue said orders and removal until a collector is found who will give bond, qualify, and collect; and, in the event that after the removal of said sheriff such other officer shall fail and refuse as aforesaid and be removed, that the said defendant county court be required to appoint some citizen of the state of Kentucky named by plaintiff, and otherwise qualified, and allow him to give bond, qualify, and collect said levy; that the said defendant county court be further commanded that in making the appointment of a collector in the event of the removal of the sheriff or other officer, that said collector need not be a resident of Muhlenberg county, but may be a resident of any part of the state of Kentucky, otherwise qualified; that the defendant county court be commanded to do and perform all the above duties without unnecessary delay, and that he be required to make his return to the said writ, and show what he has done thereunder, at some day during the coming May term of this honorable court, or at a called term thereof; and he prays for all such further orders and writs as he may be entitled to enforce the collection and payment of his said judgment." On May 4, 1903, Sparks and Blackwell appeared, and filed separate demurrers, each of which was stated to be for the reason that the petition did "not state facts sufficient to constitute a cause of action against him." The matter came on to be heard the same day, but the court, not being advised, took time. On November 23, 1903, the court delivered its opinion. The question which the court had been considering, and which was deemed the turning point in making its decision, was whether, in the then state of the statute law of Kentucky, the county judge, sitting as the county court, was authorized to levy the proposed tax, or whether that duty had been devolved upon the so-called "fiscal court" of the county, consisting of the county judge and the several justices of the peace of the county associated with him. The learned judge was of opinion that the authority to make the levy was vested in the fiscal court, and not in the county court represented by the county judge, and sustained the demurrers of the county judge and of the sheriff. The plaintiff then amended his petition by stat

ing that the justices of the peace of the county were hostile to the levy of any tax, and could not be brought together to consider the matter; that the county judge had declared that he would not call them together; that the fiscal court is only required to have two sessions in each year; that it has power to change the time of meeting, and cannot be called together except by the county judge; and that by reason of the evasions of the members of the fiscal court he would be without any practical remedy. The county judge and the sheriff renewed their demurrers. The court sustained the demurrers and dismissed the petition upon the same ground as he had sustained the previous demurrers. Some other considerations were advanced, to which we may refer later. The writ of error brings the order dismissing the petition here for review.

In Meriwether v. Muhlenberg County Court, 120 U. S. 354, 7 Sup. Ct. 563, 30 L. Ed. 653, decided in 1887, it was held by the Supreme Court, following in that regard the decisions of the Kentucky Court of Appeals, that the duty of levying taxes under the provisions of the act of February 24, 1868, was a ministerial duty, which was devolved by the act upon the county court represented by the county judge, and not the county court called the "court of claims," consisting of the county judge and the justices of the peace of the county, and charged with the duty of laying the county levy, appropriating money, and transacting other financial business of the county. By the Constitution of Kentucky adopted in 1891 and the legislation of the assembly during the years following its adoption, certain changes were made in regard to the powers and duties of the county courts, and it is contended for defendants in error that these changes have resulted in transferring the duty of levying the taxes required by the act of 1868 from the county judge to the "fiscal court" of the county as it is now called. For the plaintiffs it is contended, first, that if it was intended to make this substitution, the new remedy is so uncertain and insecure that the change amounts to an impairment of the obligation of the contract of the county with the holders of its bonds; but, second, that in fact no such transfer of this particular duty was contemplated by the convention or by the Legislature in ordaining the provisions referred to. We pass by without deciding the first of the propositions of the plaintiffs thus stated, for the reason that we are of opinion that their second proposition is correct. By section 140 of the new Constitution it was ordained that there should be a county court in each county, and by section 141 that:

"The jurisdiction of the county court shall be uniform throughout the state, and shall be regulated by general law and until changed shall be the same as now vested in the county courts of this state by law."

Then section 144 provides that:

"Counties shall have a fiscal court, which may consist of the judge of the county court and justices of the peace, in which court the judge of the county court shall preside if present, or a county may have three commissioners to be elected by the county at large, who together with the judge of the county court shall constitute the fiscal court. A majority of the members of said court shall constitute a court for the transaction of business."

Inasmuch as the new Constitution was to take the place of the old one, these provisions simply continued the old courts, bestowing upon the

court of claims a title which would always have better described it. In regard to taxation, section 171 provided that "all taxes shall be levied and collected by general laws." Stress was laid upon this provision by the court below and by counsel in argument here, as if it established a new rule of taxation which had the effect to extinguish all inconsistent laws. But this is clearly a mistake. The convention did not intend to arrest the levy and collection of taxes under existing laws, but that the Legislature should enact general laws for the levy and collection of taxes, after which, and by consequence whereof, they would be levied, etc., by general laws. But with respect to this particular law it was impossible that the Constitution should have repealed it. It did not nullify this statute when it declared that statutes inconsistent with it should be void at that time or at some future time unless the Constitution should provide a certain equivalent; and this the Constitution did not do. It supplied no new remedy, and, if the old was not continued, there would have ensued a complete lapse of the obligation of the contract, with a prospect that perhaps some remedy would be supplied by future legislation. With respect to the obligation of a municipality, the substance of its value consists of the means provided for its enforcement; and it is no more possible for the people, by a provision of their Constitution, to impair the obligation of such a contract, than for a Legislature of a state. But we have no need to pursue this line of discussion further. We have referred to the established rule upon the subject as a reason for believing that the framers of the new Constitution did not intend to disturb this then existing law, and, if there were nothing more, we should have no hesitation in concluding that this was a law which was not presently repealed. But to guard against all misapprehensions, and to assure the preservation of existing rights, it was provided in a schedule which dominated this subject that "all rights, actions, prosecutions, claims and contracts of the state, counties, individuals or bodies corporate, not inconsistent therewith shall continue as valid as if this Constitution had not been adopted." The holders of these bonds had a right, and a remedy which was the essence of it, secured by a preexisting law. We are not concerned now with the question whether it was permissible to supply an equivalent remedy, for we are seeking only, to ascertain the meaning and intent of the Constitution. Section 59, under the title "Legislative Department," declared that the General Assembly shall not pass local or special acts to authorize or regulate the levy, the assessment, or collection of taxes. But this was a restriction upon future legislation, and in no wise impaired the validity of former laws, or the rights secured under them. This would be so even without the express declaration above quoted. For these reasons we think it entirely clear that the Constitution in no wise disturbed or affected the operation and effect of the act of February 24, 1868. But it is contended that, if the Constitution did not repeal that act, the subsequent enactments of the General Assembly did have that effect. We may say once for all that, so far as the subject of discussion is concerned, no subsequent legislation was had which would not have been equally valid if the new Constitution had not existed.

The Constitution directed that the Governor should appoint three commissioners to revise the statute laws and prepare amendments to

conform them to the Constitution, and that such revision and amendments should be laid before the next General Assembly for adoption or rejection in whole or in part. This was done. The General Assembly at its next session passed acts on different dates, and then finally assembled them with other statutes by revision in one whole, which was denominated the "Kentucky Statutes of 1894." On April 18, 1892, an act was passed containing the following provisions:

"The court of claims or levy or fiscal court of each county in this commonwealth is hereby authorized to levy and collect a poll and ad valorem tax to pay off the existing current indebtedness and to defray the current and necessary expenses of the respective counties of the commonwealth of Kentucky. But this act shall not be construed so as to authorize the court of claims or any fiscal court of any county to levy a tax to pay any railroad bond indebtedness of any interest on any such indebtedness. That the poll tax shall not exceed $1.50 on each male person of the age of twenty-one years or more residing in the county. The ad valorem tax shall not exceed fifty cents on the $100.00 worth of taxable property assessed in the county." Acts 1891-92, p. 40, c. 26, § 1.

And on October 17, 1892, another act of that Legislature was passed reading as follows:

"The fiscal courts shall hold their sessions at the county seats of their respective counties, and shall have jurisdiction to levy each year for county purposes a poll-tax on each male inhabitant of the county over twenty-one years of age not exceeding one dollar and fifty cents, and an ad valorem tax on all property subject to taxation within the county, whether belonging to natural persons or corporations, companies or associations, not to exceed fifty cents on each one hundred dollars in value thereof as assessed for state purposes, unless an additional tax be required to enable the county or taxing district thereof to pay the interest on and provide a sinking fund for the extinction of indebtedness of the county or district created prior to September twenty-eight, one thousand eight hundred and ninety-one, and for that purpose the fiscal court shall have jurisdiction to levy such additional tax as may be authorized by law in force prior to September twenty-eight, one thousand eight hundred and ninety-one, and shall superintend the collection of all such tax." Acts 1891–92, p. 270, c. 101, § 7.

Both these enactments were carried into the revision by the same Legislature, and are found in the same chapter 52 (Ky. St. 1894), under the title "Fiscal Courts." In the following order, in that chapter, section 1833 provides that the fiscal court in each county shall consist of the county judge and the justices of the peace. Section 1834 provides "that unless otherwise provided by law, the corporate powers of the several counties of the state shall be exercised by the fiscal court thereof, respectively." Then in section 1839 is the above-quoted provision of the act of October 17, 1892. Section 1840 confers similar, but no more specific, authority; and section 1882 is the foregoing quotation from the act of April 18, 1892. It is contended for the respondents that section 1839, having been originally passed at a later date than section 1882, repealed the same by implication, and upon this assumption that one is a later act than the other, the rule of construction which is supposed to be applicable to statutes holding that relation is invoked. We doubt, however, whether upon this assumption the later statute, which simply confers a jurisdiction in general terms, would repeal an act which so specifically denied jurisdiction in a particular class of cases. There is room for both statutes to have a field of operation, the special

statute in the particular cases and the general statute in the cases not thus eliminated; for it is not doubted that a county may have many other kinds of indebtedness than "railroad bonded indebtedness." But we do not think the rule sometimes applicable to a special act succeeded by a general one should be applied here. The general rule is that an act which relates to a particular subject is not repealed by a later one which is general in its terms, but would include the particular case if that were not already provided for. The exception to this rule is that, if it plainly appears that the later general statute was intended to cover the particular case, and hold sway in place of the former act, the latter must be regarded as repealed by implication. But, as repeals by implication are not favored, the intent to repeal must "plainly appear." And it is manifest that it cannot be said that the intention to repeal is clearly shown when the general statute by its own terms admits of exceptional cases where other provision is made. The above-stated rule has been applied in a great number of cases by the Supreme Court of the United States, and the exception in some. The cases most nearly in point here are State v. Stoll, 17 Wall. 425, 21 L. Ed. 650; Ex parte Crow Dog, 109 U. S. 556, 3 Sup. Ct. 396, 27 L. Ed. 1030; Chew Heong v. United States, 112 U. S. 536, 5 Sup. Ct. 255, 28 L. Ed. 770. But the revision of 1894 was a single body of statutes, and all its parts were brought in and re-enacted. Each chapter and all related parts having reference to any given subject treated are deemed to be a fresh expression of the law. We think, therefore, that chapter 52 should be construed as if it were a single enactment. All parts of it are to be deemed to have been under the eye of the Legislature when that body put it together and enacted it, and we believe that in such case the authorities upon the subject of statutory construction are generally agreed that the special declaration will stand for the special matter, and the general provision will cover all other matters not thus set apart, or, if there be none such, then, of course, both cover the same territory, and that part of the statute last written will prevail. Sutherland on Statutory Construction, § 153; Commonwealth v. Huntly, 156 Mass. 236, 30 N. E. 1127, 15 L. R. A. 839; Smith v. The People, 47 N. Y. 330; State v. Rotwitt, 17 Mont. 41, 41 Pac. 1004.

Then again it is to be borne in mind that section 1834 excludes from the powers of the fiscal court those cases where it is provided otherwise by law. If this means already provided by law, the present case would be excluded from this grant of power. If it does not mean that, but means (as we think most likely) such provision as might be made in that revision or by some subsequent enactment, this case would also be excluded. Again, the powers of the fiscal court are of a discretionary nature, requiring the exercise of judgment upon questions of expediency, and this is the reason why the justices of the peace of the county are brought in to aid the county judge by their counsel. And when it is said that that court shall have jurisdiction to levy taxes, more than the mere ministerial performance is intended. The amount of the taxes, and how much for the several purposes of the county, and in what year each tax should be raised-in short, the management of the fiscal affairs of the county-is delegated to it. But the levy of the tax required by the act of 1868 was a ministerial duty, for the discharge of

131 F.-29

« EdellinenJatka »