Imágenes de páginas

Argument for Plaintiff in Error.

The following sections of article 12 of the act of 1886 indicate the extent to which previous laws were affected by it: "85. Chapter 92 of the General Statutes, the act of March 28, 1872, entitled 'An act to amend chapter 83 of the Revised Statutes, title Revenue and Taxation,' the amendment to said act of March 28, 1872, entitled 'An act to amend an act, approved March 28, 1872, authorizing sheriffs to sell real estate to pay revenue tax,' approved April 19, 1873, the act approved April 2, 1878, entitled 'An act to amend section 6, article 6, chapter 92 of the General Statutes,' an act to amend article 2 of chapter 92 of the General Statutes, title, Revenue and Taxation, approved May 8, 1884, and all other acts, general and special, and parts of acts inconsistent herewith, or not in conformity herewith, are hereby repealed; but nothing in this act shall interfere with any existing local option, or any special or prohibition law in any county, nor with any local or general law for creating or collecting county levy, or with chapter 1315 of the acts of 1879, 1880, or with an act entitled 'An act for the benefit of the Branch Penitentiary at Eddyville,' approved April 7, 1886.


"§ 6. Nothing in this act shall be held to repeal, or in any way impair, the force and effect of any local or special act, or any general law now in force, or that may hereafter be passed, providing for the appointment of collectors of state revenue or county levy and poll-tax, in any county of the State, nor shall anything herein be construed to repeal or impair the force of any special or local law giving to counties or towns, for road or street purposes, the fines collected for violations of the road and bridge laws of said county.

"87. That this act shall take effect from and after September 14, 1886; but it shall not operate as a repeal of existing laws as to any assessment made, licenses granted or obligations or penalties incurred under any existing law."

Mr. William Lindsay and Mr. T. L. Burnett for plaintiff in error. Mr. H. M. Lane and Mr. J. C. Burnett were on their brief.

Argument for Plaintiff in Error.

The act to amend the charter of the Louisville Water Company, approved the twenty-second of April, 1882, constituted a contract between the plaintiff in error and the State of Kentucky.

This statute, consisting of two sections, should be read as a whole, and construed in the light of all the previous legislation by that State on the subject, viz.: (1) The charter of the Louisville Water Company; (2) The charter of the city of Louisville; (3) The charter of the Commissioners of the Sinking Fund of the city of Louisville; (4) The act of the General Assembly of March 15, 1869, by which the stock in the Louisville Water Company, owned by the city of Louisville, was added to the resources of the sinking fund; (5) That by law all the resources of said sinking fund were to be held and sacredly used for the payment of the principal and interest of the bonded indebtedness of the city of Louisville, including the present and any future indebtedness of said city; (6) That the Louisville Water Company had, prior to April 22, 1882, furnished the public fire cisterns and public fire plugs or hydrants with water for fire protection, and that the city of Louisville had paid for such water; (7) That the said act of April 22, 1882, was accepted by the Louisville Water Company, and from that date to the present time the said water company has furnished to the public fire cisterns and public fire plugs or hydrants, an abundant supply of water for fire protection. free of charge; (8) That the water thus furnished for fire protection to the city of Louisville, costs the Louisville Water Company $10,000 annually.

It is well settled that where a doubt arises in the construction of a statute, though it attaches only to a particular clause, the whole statute is to be considered together, in arriving at the legislative intent. Commonwealth v. Duane, 1 Binney, 601; S. C. 2 Am. Dec. 497; Commonwealth v. Alger, 7 Cush. 53, 89; Nazareth Lit. Inst. v. Commonwealth, 14 B. Mon. 266; Bailey v. Commonwealth, 11 Bush, 688; Market Co. v. Hoffman, 101 U. S. 112; Berrida v. Silsby, 21 How. 146, 161, Nash v. Towne, 5 Wall. 689.

It will not be argued that it was within the legislative

Argument for Plaintiff in Error.

power to require the water company to furnish water for fire protection to the city free of charge. The same power had, by laws previously passed, authorized the parties to contract, one to furnish an abundant supply of water for that purpose, and the other to pay for it. It would not have been more flagrantly unreasonable or unlawful if in lieu of section 1 of the said act it had provided that the water company should pay all the taxes levied by the State on all the property in the city and in Jefferson County, or that the property of the water company should after that date be the property of the city or other corporation or person. To give such a construction would at once declare the first section a nullity and violate the well established rules of construction. If we follow the rules of construction, and take the whole statute together, it will be seen at once that the legislative power of the State made an offer of exemption from taxation, and the reason for such exemption was in consideration of the performance of the services therein named, which offer was accepted and the duties performed.

The object thus to be attained was a public one, for which the State could make such provisions by legislative enactment as in the judgment of the legislative department would best promote the public health and the public comfort, or the protection of public and private property. Ohio Life Ins. Co. v. Debolt, 16 How. 415; New Orleans Water Works v. Rivers, 115 U. S. 674; Newport v. Light Company, 84 Kentucky, 166; Louisville Water Co. v. Hamilton, 81 Kentucky, 517; New Orleans Gaslight Co. v. Louisiana Light and Heat Producing Manufacturing Co., 115 U. S. 650; Louisville Gas Co. v. Citizens Gas Light Co., 115 U. S. 683; Gordon v. Winchester Building Ass'n, 12 Bush, 114; Mobile v. Kimball, 102 U. S. 691; State v. Morris Aqueduct, 46 N. J. L. 495; New Orleans v. Clark, 95 U. S. 644; Beekman v. Saratoga Railroad Co., 3 Paige, 44; S. C. 22 Am. Dec. 679; Riche v. Bar Harbor, 75 Maine, 91; Indianapolis Water Works Co. v. Burkhardt, 41 Indiana, 364; Kane v. Baltimore, 15 Maryland, 240; Portland v. Portland Water Co., 67 Maine, 135; Spring Valley Water Works v. San Francisco, 52 California, 111; Dingley v. Boston, 100 Mass. 544.

Opinion of the Court.

In 1868 the General Assembly of Kentucky incorporated the Green and Barren River Navigation Company and conferred upon it such corporate powers and privileges as were deemed necessary to enable it to carry out the purposes of its creation. By a provision of the act of incorporation the State leased to the corporation for the period of thirty years the Green and Barren River line of navigation. After the organization of the corporation it complied with the condition of the proposed contract of lease, and took and held possession of the improvements for a number of years. In 1880 the legislature passed an act to repeal, in part, the act incorporating the company. The repeal applied to so much of the act as leased and conveyed to the navigation company the Green and Barren River line of navigation, and the benefits of tolls and revenues arising therefrom. The Court of Appeals of Kentucky held that this repeal could not be held to have divested the company of any of its rights, or to impair the validity of the contract. Sinking Fund Comm'rs v. Green & Barren River Nav. Co., 79 Kentucky, 73, 81.

It is submitted that if the legislature can compel the water company to supply water to the fire department of the city of Louisville, free of charge, for the protection as well of the property of the State and Federal government as of the city and its people, and cannot exempt the property of the company from state taxation, or can withdraw the exemption at will, then the State may, in this way and to this extent, legitimately diminish this resource of the sinking fund. ·

Mr. James P. Helm and Mr. Helm Bruce for defendant in


MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.

The contention of the water company that it acquired by the act of 1882 an exemption from taxation which could not be withdrawn by subsequent legislation, without its consent, makes it necessary to inquire whether that exemption was in

Opinion of the Court.

fact thus withdrawn; and, if so, whether the statute withdrawing it impaired the obligation of any contract the company had with the State by the act of 1882.

It is clear that the exemption allowed by the act of 1882 was withdrawn by the general revenue statute of 1886. While the former act exempted the water company from taxation of whatever character, state, municipal or special, the latter subjected to taxation all property, real and personal, within the State, unless expressly exempted by its provisions. The act of 1886 not only failed to exempt the property of the water company from taxation, but expressly required, as did the General Statutes in force prior to 1882, (art. 12, § 4, c. 92,) that every water company doing business, within the State, should make, annually, a full and complete statement, under oath, of all its property, including its surplus or contingent fund, cash, stocks, bonds and other securities. And that there might be no possible doubt as to the scope of that act, the chapter of the General Statutes relating to taxation, and other statutes specially named by their titles, relating to revenue, and all other acts and parts of acts, "general and special," inconsistent or not in conformity with its provisions, were expressly repealed by the act of 1886. The sweeping character of this repeal is further shown by the specification of certain laws that were excepted from the repeal, which specification did not include the act of 1882. The latter act is special in its exemption of a particular company from taxation. It was, therefore, inconsistent with the revenue act of 1886, which embraced, in terms, all property, real and personal, within the State, not expressly exempted by its provisions from taxation. There is thus a positive repugnancy between the special and general act. This being so, the repealing clause included the special act of 1882, and, therefore, subjected the property of the water company to taxation as provided in the revenue act of 1886. In so holding, we do no violence to the established rule that repeals by implication are not favored, State v. Stoll, 17 Wall. 425, 431; Ex parte Crow Dog, 109 U. S. 556, 570; Chew Heong v. United States, 112 U. S. 536, 549; for, under the repeal of all special acts not in conformity with the general statute, the act of 1882, not being

« AnteriorContinuar »