Maysville & Lexington Turnpike Road Co. v. Wiggins

JUDGE HAZELRIGG delivered the opinion oe the court. 'After a favorable vote upon a submission of the question to the voters of Nicholas county at the regular election in November, 1896, whether they were “in favor of free turnpikes and gravel roads,” in pursuance of the act of March 17, 1896, the fiscal court in November, 1897, entered into a contract with the Maysville & Lexington Turnpike Road Company, by which it purchased, at the price of $23,000, payable in yearly installments of $2,000 each, some fifteen miles of the road situated in Nicholas county. Thereupon Wiggins, a taxpayer of the county, for himself and others, instituted his action to enjoin the levy of any tax on behalf of the contract of purchase, and to have the contract declared void, on the following grounds: 1. Notwithstanding the authority to make the contract is conferred in the act in question, the Constitution, by section 179, prohibits counties from buying turnpikes or gravel roads from any company, association, or corporation; and therefore the act of March, 1896, is unconstitutional. 2. The contract incurs an indebtedness in an amount exceeding, in the year 1897, the income and revenue provided for that year; and no election has been held to obtain the assent of the voters of the county, as provided in section 157 of the Constitution. The first contention is easily disposed of. Section 179' of the Constitution reads as follows: “The General Assembly shall not authorize any county or subdivision thereof, city, town or incorporated district, to become a' stockholder in any company, association or corporation, or [545] to obtain or appropriate money for, or to loan its credit to, any corporation, association or individual, except for the purpose of constructing or maintaining bridges, turnpike roads or gravel roads: provided, if any municipal corporation shall offer to the Commonwealth any property or money for locating or building a capítol, and the CommonAvealth accepts such offer, the corporation may comply with the offer.” It needs no argument to shoiv that this purchase from the company of its turnpike road, together with all its “rights, privileges, and appurtenances,” as expressed in the contract of purchase and conveyance to the county, does not make the county a stockholder in the company; nor does the county thereby appropriate money for, or loan its credit to, the company. It is said this seems clear enough with respect to the question of the county becoming a stockholder and of loaning its credit, but that it is certainly an appropriation of money for the company. We think not.' To buy and pay for the roadbed, toll houses, rights, and jmvileges of the company is not to “appropriate money for” the company, within the meaning of the Constitution. The appropriation is not “in aid of,” “for the sake of,” or “on account of” the company, and is therefore not an appropriation for the company. It is not a gift or loan of credit to the company. In fact, the company, as to the purchased property and the exercise of further right thereover, becomes extinct, and no longer exists in Nicholas county. But, if it be such an appropriation, it is authorized because of. the right conferred in the section on the county to make same for the purpose of constructing and maintaining such roads. It is too narrow a construction of this language to say a [546] county may construct and maintain, but may not buy, such roads when already constructed. The second ground .presents more difficulty. Section 157 of the Constitution precludes the county from becoming indebted in an amount exceeding, in any year, the income and revenue provided for such year, without a vote of the people, as prescribed in the section. It is admitted that no vote has been taken under this section, and it is left to us only to determine from the pleadings whether such an election is shown to be necessary, and that depends upon whether, by the creation of such a debt, the county will become indebted beyond the constitutional limit fixed in this section. It is to be noticed that it is not contended that the aggregate debt of the county is in excess of the absolute limitation of indebtedness prescribed in section 158. Admittedly, when that limit is reached, no further indebtedness can be incurred in any event or authorized by any vote. With reference to this debt of $23,-000,' the petition avers “that said indebtedness is an amount exceeding, in the said year, 1897, the income and revenue provided for such year by said court, which revenue is 34 cents on the $100 worth of property in said county, and levied for the following purpose's: 15 cents for the sinking fund and to meet outside indebtedness, and 4 cents to subscription to the Barefoot Turnpike Road Co., and 15 cents for current expenses.” These are the only averments in the pleadings on this subject, and the averment that the indebtedness created by purchase of the turnpike road — the indebtedness of $23,000 — is in an amount in excess of the income and revenue provided for for that year is specifically denied by the answer. This is claimed by Wiggins to be a sham plea, but it is altogether probable that the denial is true. The income and revenue [547] for the county for the year were doubtless largely in excess of $28,000. We know from an exhibit filed by the answer that this 34 cents on the $100 was not the whole of the levy provided for that year, a,nd this fact we can take notice of as against the pleader, although it can not be used to help out his petition. Whether this additional levy will produce an income sufficient, with the levy of 34 cents, to pay off all indebtedness created or to be paid that year, including the $23,000, depends upon the amount of taxable property in the county. We are nowhere told Avhat is the indebtedness of the county in the aggregate, or that payable in 1897, or what is the amount of its taxable property7. These facts must be known before the question attempted to be raised can be passed on intelligently. As the plead-, ings stand, the plaintiff Avas not entitled to the judgment enjoining the levy proposed. Appellee should, howeA7er, be permitted to amend his pleadings and make them more definite. It is suggested by7 counsel for appellant that, as the proposition to have free turnpikes and gravel roads carried by a two-thirds vote, the indebtedness incurred by the purchase is not inhibited by the Constitution, under the section we have been considering. It is manifest, however, that a vote oh the question of having such roads free is not a A7ote to increase the indebtedness bey’ond the constitutional restriction; and we need not, therefore, inquire into the effect of the conceded fact that “free turnpikes” carried in Nicholas county by a majority of two-thirds of those voting on the question, and not by two-thirds of all those A7oting at the general election. The act only required a majority of those voting on the question, and, although a majority of two-thirds of those voting on the question voted for free turnpikes, the question of incur [548] ring tbe proposed indebtedness is not thereby affected or the’ indebtedness thereby authorized. The contention of counsel for appellee that the law of March 17, 1896, is special and local, because operative or effective only on a vote of the people, is without merit, as the Constitution in express terms provides that such a law may be passed with respect to this particular subject-matter. Constitution, section 60. For the reasons indicated the judgment is reversed, for further proceedings consistent herewith.