Sivut kuvina
PDF
ePub

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 1891." 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

which there was no occasion for the exercise of the functions of the fiscal court. As was observed by Mr. Justice Harlan in Meriwether v. Muhlenberg County Court, supra:

"It is clear that the levy and collection of a tax to meet a county subscription to the stock of a railroad company is not a business connected with the laying of the county levy, or with appropriations of money out of said levy."

There was, therefore, no reason that we can see which should have moved the Legislature to transfer this duty from the county judge, to whom it then belonged, to the fiscal court, unless it was the merely fanciful one of creating uniformity; and that this was not a dominating. purpose is shown by the exclusion from the powers of the fiscal court of such matters as were otherwise provided for by law. It was of no consequence to the county who should perform the duty. It was simple and absolute. The only consequence would be that the change might afford better means for embarrassing the creditors. Not only is it not permissible to attribute such a purpose, but we find, on the contrary, abundant evidence that the Legislature had no thought of disturbing vested rights or rendering them less secure. So by section 1057, chapter 35 of the same revision, the Legislature did not confine the power of the county court to the matters enumerated, but gave to it "such other jurisdiction as may be conferred upon it by law.' And when, by section 1882, power was denied to the fiscal court "to levy a tax to pay any railroad bonded indebtedness," the law of 1868 conferring the power upon the county judge continued unrepealed, for there was no other law which furnished any remedy for enforcing payment of the bonds. Indeed, the distribution of the powers granted to these courts of the county, with the reservations contained in said grants, when construed and applied to the conditions then existing, as they should be, would, we think, retain the power here in question in the county judge.

Conceding that it would be in the power of the Legislature to change the system of levying and collecting taxes in the state, providing an equivalent substitute for the former method is supplied, and assuming that a grant of power to the fiscal court to make a levy and order the collection is the equivalent of a command to the county judge to do it, we are nevertheless of opinion that the Legislature did not intend to divest the power of the county judge to make the levy of taxes and order their collection granted by the act under which the bonds in suit. were issued. We are not aware that the proposition now advanced by the respondents has the support of any adjudication of either the state or federal courts, but it is not wholly new. It was put forward by Fleming, the county judge who preceded the respondent Sparks, in his response to the alternative writ of mandamus issued by the court below in the case of Jabine et al. against him and the county, as a reason why he should not be required as county judge to make the levy. The response was held by Judge Barr to be insufficient, and was overruled. The opinion which he filed does not exhibit any discussion of the point, but the judgment necessarily determined that the legislation referred to did not take away the power to make the levy. The record of that case, brought into this court by writ of error, exhibited this defense, and it lay at the root of the whole proceeding. Notwithstanding this

the order of the Circuit Court was affirmed. No opinion was written, but the judgment here could not have been rendered if the respondent was not the proper person to be coerced by the writ. That judgment was between other parties, and so, of course, is not an estoppel. But it is in some sense a precedent.

The court below, in its opinion, expressed its view to be that:

"As to Blackwell, the sheriff, the petition is manifestly premature. No levy having been made, his refusal to qualify was 'in the air.' Certainly nothing has as yet arisen to make it his duty to give the bond required of him by the act, or to collect a levy which has not been made."

But it was distinctly decided otherwise by the Supreme Court in Labette County v. Moulton, 112 U. S. 217, 5 Sup. Ct. 108, 28 L. Ed. 698, where it was held proper to join in the writ those officers who were charged by law with the performance of successive duties required in the levying and collection of the tax. As soon as the levy has been made and tendered to him for collection, the sheriff's duty at once becomes imperative to proceed to give the bond, to qualify himself, and to collect the tax. That was a duty he took upon himself when he assumed his office. If he will not do that, the act of February, 1868, declares he shall forfeit his office and the county judge is required to declare the forfeiture, and thereupon to appoint a collector, who, if he accepts the appointment, must give the bond, and thereupon has the powers and duties of the sheriff in making the collection. It is argued for the respondents that when the sheriff has, upon his entrance into office, given the bond required of him to qualify himself, that bond secures the performance of every duty cast upon him as sheriff, and the further bond required of him when he comes to collect a tax is a cumulative security, and that it is only the failure to give the original bond which justifies his removal from office; and Schuff v. Pflanz, 99 Ky. 97, 35 S. W. 132, is cited, which hardly sustains the proposition contended for. But, assuming the general law as it now exists to be as contended, that in no wise relieves the stress of the obligation of the fifteenth section of the act of 1868, which declares that, if the sheriff will not give the bond, he shall forfeit his office; and this law, as we have held, has not been repealed. It would seem that, if the machinery for collecting the tax has been changed to such an extent as the contention just noticed would indicate, the question whether an equivalent remedy has been provided might become serious; but we have proposed to pass that question.

It was held in Jabine et al. v. Sparks, supra, by Judge Barr, whose ruling was affirmed by this court, that, if the sheriff should refuse to give the bond required by the fifteenth section of said act of 1868, the county judge should remove him, and then proceed to appoint a collector. The course of proceeding there marked out should be followed here.

The order dismissing the plantiff's petition will be reversed, with costs, and the Circuit Court will be directed to overrule the respondents' demurrer, and to proceed in conformity with law, and not inconsistently with this opinion.

UNITED STATES v. GEDDES.

(Circuit Court of Appeals, Sixth Circuit. June 8, 1904.)

No. 1,270.

1. SAFETY APPLIANCE ACT-NONCOMPLIANCE-INTERSTATE TRAFFIC-INTRASTATE RAILROADS.

Defendant, as receiver, operated a narrow gauge railroad wholly in Ohio, which connected at one of its termini with the B. & O. Railroad. Defendant refused to ship interstate traffic over his road, either received from or delivered to the B. & O. road, under a through bill of lading, or any other arrangement, except that, on the delivery of such freight shipped over defendant's road under a local bill of lading at its terminus, it should be received for transportation without the state by the B. & O. road under another bill of lading, the latter road assuming defendant's local freight charge, and defendant, on receiving such shipments from the B. & O. for transportation to points on his line, charged a local freight tariff from the receiving point to destination, also assuming payment of the B. & O.'s advance charges, settlement of freight between the parties being made weekly. Held, that defendant's railroad was not engaged in interstate commerce within the meaning of, and was, therefore, not liable for penalties for noncompliance with, the safety appliance act (Act Cong. March 2, 1893, c. 196, 27 Stat. 532, as amended by Act Cong. April 1, 1896, c. 87, 29 Stat. 85 [U. S. Comp. St. 1901, p. 3175]), requiring common carriers engaged in interstate commerce by railroad to equip their cars with automatic couplers, etc.

In Error to the District Court of the United States for the Southern District of Ohio.

This was a suit on behalf of the United States for the recovery of penalties provided by Act Cong. March 2, 1893, c. 196, § 6, 27 Stat. 532, as amended by Act Cong. April 1, 1896, c. 87, 29 Stat. 85 [U. S. Comp. St. 1901, p. 3175], known as the "Safety Appliance Act." The sections of the act involved are:

"Section 1. That from and after the 1st day of January, 1898, it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving wheel brake and appliances for operating the train brake system, or to run any train in such traffic after said date that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.”

"Sec. 2. That on and after the 1st day of January, 1898, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars."

"Sec. 6. That any such common carrier using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any car in violation of any of the provisions of this act, shall be liable to a penalty of one hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States District Attorney in the district court of the United States having jurisdiction in the locality where such violation shall have been committed; and it shall be the duty of such District Attorney to bring such suits upon duly verified information being lodged with him of such violation having occurred; and it shall also be the duty of the Interstate Commerce Commission to lodge with the proper district attorneys information of any such violations as may come to its knowledge," etc.

The petition contains four causes of action, alleging four violations of the law, based upon the movement of four cars used in moving interstate traffic, but not equipped with automatic couplers. A jury was waived and the court found in favor of the defendant on the ground that the railroad operated by

« EdellinenJatka »