City of Covington v. Kentucky/Opinion of the Court
The plaintiff in error, a municipal corporation of Kentucky, insists that, by the final judgment of the court of appeals of that commonwealth (39 S. W. 836), sustaining the validity of certain taxation of its waterworks property, it has been deprived of rights secured by that clause of the constitution of the United States which prohibits any state from passing a law impairing the obligation of contracts. That is the only question which this court has jurisdiction to determine upon this writ of error. Rev. St. U.S. § 709.

By an act of the general assembly of Kentucky approved May 1, 1886, the city of Covington was authorized to build a water reservoir or reservoirs within or outside its corporate limits, either in the county of Kenton or in any county adjacent thereto, and acquire, by purchase or condemnation in fee simple, the lands necessary for such reservoirs, and connect the same with the waterpipe system then existing in the city; to build a pumping house near or adjacent to the Ohio river, and provide the same with all necessary machinery and appliances, together with such lands as might be needed for the pumping house, and for connecting it with said reservoir or reservoirs. Section 21.

The declared object of that legislation was that the city and its citizens might be provided with an ample supply of pure water for all purposes. To that end, the city was authorized and empowered, by its board of trustees, to issue and sell bonds to an amount not exceeding $600,000, payable in not more than 40 years after date, with interest at a rate not exceeding 5 per cent. per annum; such bonds not, however, to be issued until the question of issuing them and the question of the location of the reservoir or reservoirs, whether above or below the city, should first be submitted to the qualified voters of the corporation at an election held for that purpose, and approved by a majority of the votes cast.

By section 31 of that act it was provided that 'said reservoir or reservoirs, machinery, pipes, mains and appurtenances, with the land upon which they are situated, shall be and remain forever exempt from state, county and city tax.' Acts Ky. 1885-86, p. 317, c. 897.

A subsequent act, approved February 15, 1888, authorized the city, in execution of the provisions of the act of 1886, to issue and sell bonds to the additional amount of $400,000. Acts Ky. 1887-88, p. 221, c. 137.

The scheme outlined in these acts received the approval of the majority of the votes cast at an election held in the city, and thereafter bonds to the amount of $600,000 and $400,000 were issued in the name of the city, and disposed of.

The proceeds of the bonds were duly applied by the city in building water reservoirs, in constructing the requisite approaches, pipes, and mains, in acquiring the lands necessary for the reservoirs and for its approaches and connections, in erecting a pumping house and providing it with necessary machinery and appliances, and in buying land for a pumping house, and the connection thereof by pipes and mains with the reservoirs.

The entire works, upon their completion, passed under the control of the city which managed the same until March 19, 1894, by the commissioners of waterworks, under the act of March 31, 1879, c. 121 (Acts Ky. 1879, p. 93); and since March 19, 1894, they have been controlled under the act of that date (chapter 100), by a board, subject to such regulations as the city by ordinance might provide. Acts Ky. 1894, p. 278. By the latter act it was also provided that the net revenue derived from its waterworks by any city of the second class-to which class the city of Covington belongs-should be applied exclusively to the improvement or reconstruction of its streets and other public ways.

When the above act of May 1, 1886, was passed, there was in force a general statute of Kentucky, passed February 14, 1856, which provided, as to all charters and acts of incorporation granted after that date, that 'all charter  and grants of or to corporations, or amendments thereof, and all other statutes, shall be subject to amendment or repeal at the will of the legislature, unless a contrary intent be therein plainly expressed: provided, that whilst privileges and franchises so granted may be changed or repealed, no amendment or repeal shall impair other rights previously, vested'; and that 'when any corporation shall expire or be dissolved, or its corporate rights and privileges shall cease by reason of a repeal of its charter or otherwise, and no different provision is made by law, all its works and property, and all debts payable to it shall be subject to the payment of debts owing by it, and then to distribution among the members according to their respective interests; and such corporation may sue and be sued as before, for the purpose of settlement and distribution as aforesaid.' 2 Rev. St. Ky. p. 121.

This statute was not modified by the general revenue statute of May 17, 1886, which took effect September 14, 1886, and became part of chapter 68 of the General Statutes of 1888. It constitutes section 1987 of the revision known as the 'Kentucky Statutes of 1894.' Nor has it been changed by any subsequent legislation in Kentucky.

The present constitution of Kentucky, adopted in 1891, contains the following provisions:

'Sec. 170. There shall be exempt from taxation public property used for public purposes: * * *.

'Sec. 171. The general assembly shall provide by law an annual tax, which, with other resources, shall be sufficient to defray the estimated expenses of the commonwealth for each fiscal year. Taxes shall be levied and collected for public purposes only. They shall be uniform upon all property subject to taxation within the territorial limits of the authority levying the tax; and all taxes shall be levied and collected by general laws.

'Sec. 172. All property, not exempted from taxation by this constitution, shall be assessed for taxation at its fair cash value, estimated at the price it would bring at a fair voluntary sale; and any officer, or other person authorized to assess values for taxation, who shall commit any willful error in the performance of his duty, shall be deemed guilty of misfeasance, and upon conviction thereof shall forfeit his office, and be otherwise punished as may be provided by law.'

By the Kentucky Statutes of 1894 it is provided:

'Sec. 4020. All real and personal estate within this state, and all personal estate of persons residing in this state, and of all corporations organized under the laws of this state, whether the property be in or out of this state, including intangible property, which shall be considered and estimated in fixing the value of corporate franchises as hereinafter provided, shall be subject to taxation, unless the same be exempt from taxation by the constitution, and shall be assessed at its fair cash value, estimated at the price it would bring at a fair voluntary sale.'

'Sec. 4022. For the purposes of taxation, real estate shall include all lands within this state and improvements thereon; and personal estate shall include every other species and character of property-that which is tangible as well as that which is intangible.'

'Sec. 4026. The following property is exempt from taxation: Public property used for public purposes. * * *' This act repealed all acts and parts of acts in conflict with its provisions, except the act of June 4, 1892, providing additional funds for the ordinary expenses of the state government, and the act amendatory thereof, approved July 6, 1892.

In the year 1895 certain lands acquired under the above act of May 1, 1886, and constituting a part of the Covington waterworks, were assessed for state and county taxation, pursuant to the statutes enacted after the passage of that act, and conformably as well to the constitution of Kentucky if that instrument did not exempt them from taxation. The taxes so assessed not having been paid, those lands, after d e notice, were sold at public outcry by the sheriff (who by law was the collector of state and county revenue); and, no other bidder appearing, the commonwealth of Kentucky purchased them for $2,187.24, the amount of the taxes, penalty, commission, and cost of advertising.

The present action was brought by the commonwealth to recover possession of the property so purchased.

The principal defense is that the provision in the act of May 1, 1886, that the reservoir or reservoirs, pumping house, machinery, pipes, mains, and appurtenances, with the land upon which they are situated, 'shall be and remain forever exempt from state, county and city taxes,' constituted, in respect of the lands in question, a contract between the city of Covington and the commonwealth of Kentucky, the obligation of which was impaired by the subsequent legislation to which reference has been made.

Referring to section 170 of the present constitution of Kentucky, declaring that 'there shall be exempt from taxation public property used for public purposes,' the court of appeals of Kentucky, in this case, said: 'It was followed by necessary statutory enactments, which, however, could neither curtail nor enlarge exemption from taxation, as prescribed by the constitution; and accordingly, in section 4020, Ky. St., adopted for the purpose of carrying out the provisions of section 170, is the identical language we have quoted. As it was manifestly intended by both the constitution and statute to make subject to taxation all property not thereby in express terms exempted, it results that, unless the waterworks property of the city of Covington be, in the language or meaning of section 170, 'public property used for public purposes,' it must be held, like similar property in other cities, subject to taxation, and the special act of May 1, 1886, stands repealed. Assuming, as a reasonable and beneficial rule of construction requires us to do, that the phrase 'for public purposes' was intended to be construed and understood according to previous judicial interpretation and usage, there can be no doubt of the proper meaning and application of it, for in the cases cited and others, where the question of subjecting particular property of cities to taxation arose, the words 'for public purposes' had been held by this court to mean in that connection the same as the words 'for governmental purposes,' and so property used by a city for public or governmental purposes was held to be exempt, while that adapted and used for profit or convenience of the citizens, individually or collectively, was held to be subject to taxation; and, recognizing and applying that distinction, waterworks property of a city has been invariably treated by this court as belonging to the latter class, and consequently subject to state and county taxation. In our opinion, the property in question is, under the constitution, subject to taxation, and the statute enacted in pursuance of it operated to repeal the special act of May 1, 1886.'

However much we may doubt the soundness of any interpretation of the state constitution implying that lands and buildings are not public property used for public purposes when owned and used under legislative authority by a municipal corporation, one of the instrumentalities or agencies of the state, for the purpose, and only for the purpose, of supplying that corporation and its people with water, and when the net revenue from such property must be applied in the improvement of public ways, we must assume, in conformity with the judgment of the highest court of Kentucky, that section 170 of the constitution of that commonwealth cannot be construed as exempting the lands in question from taxation. In other words, we must assume that the phrase 'public purposes,' in that section, means 'governmental purposes,' and that the property here taxed is not held by the city of Covington for such purposes, but only for the 'profit or convenience' of its inhabitants, and is liable to taxation, at the will of the legislature, unless, at the time of the adoption of the constitution of Kentucky, it was exempt from taxation in virtue of some contract the obligation of which is protected by the constitution of the United States.

The fundamental question in the case, then, is whether, at the time of the adoption of that constitution, the city of Covington had, in respect of the lands in question, any contract with the state the obligation of which could not be impaired by any subsequent statute or by the present constitution of Kentucky, adopted in 1891. If the exemption found in the act of 1886 was such a contract, then it could not be affected by that constitution any more than by a legislative enactment.

We are of opinion that the exemption from taxation embodied in that act did not tie the hands of the commonwealth of Kentucky, so that it could not, by legislation, withdraw such exemption, and subject the property in question to taxation. The act of 1886 was passed subject to the provision in a general statute of Kentucky, above referred to, that all statutes 'shall be subject to amendment or repeal at the will of the legislature, unless a contrary intent be therein plainly expressed.' If that act in any sense constituted a contract between the city and the commonwealth, the reservation in an existing general statute of the right to amend or repeal it was itself a part of that contract. Griffin v. Insurance Co., 3 Bush, 592. The city accepted the act of 1886, and acquired under it the property taxed subject to that reservation. There was in that act no 'plainly-expressed' intent never to amend or to repeal it. It is true that the legislature said that the reservoirs, machinery, pipes, mains, and appurtenances, with the land upon which they were situated, should be forever exempt from state, county, and city taxes. But such a provision falls short of a plain expression by the legislature that at no time would it exercise the reserved power of amending or repealing the act under which the property was acquired. The utmost that can be said is that it may be inferred from the terms in which the exemption was declared that the legislature had no purpose, at the time the act of 1886 was passed, to withdraw the exemption from taxation; not that the power reserved would never be exerted, so far as taxation was concerned, if in the judgment of the legislature the public interests required that to be done. The power expressly reserved to amend or repeal a statute should not be frittered away by any construction of subsequent statutes based upon mere inference. Before a statute-particularly one relating to taxation-should be held to be irrepealable, or not subject to amendment, an intent not to repeal or amend must be so directly and unmistakably expressed as to leave no room for doubt; otherwise, the intent is not plainly expressed. It is not so expressed when the existence of the intent arises only from inference or conjecture.

The views we have expressed as to the power of the legislature under a reservation made by general statute of the right to amend or repeal are supported by many adjudged cases: Tomlinson v. Jessup, 15 Wall. 454, 457; Railroad Co. v. Maine, 96 U.S. 499, 510; Railroad Co. v. Georgia, 98 U.S. 359, 365; Hoge v. Railroad Co., 99 U.S. 348, 353; Sinking Fund Cases, 99 U.S. 700, 720; Greenwood v. Freight Co., 105 U.S. 13, 21; Close v. Cemetery, 107 U.S. 466, 476, 2 Sup. Ct. 267; Waterworks Co. v. Schottler, 110 U.S. 347, 352, 4 Sup. Ct. 48; Louisville Gas Co. v. Citizens' Gas-Light Co., 115 U.S. 683, 696, 6 Sup. Ct. 265; Gibbs v. Gas Co., 130 U.S. 396, 408, 9 Sup. Ct. 553; Sioux City St. Ry. Co. v. Sioux City, 138 U.S. 98, 108, 11 Sup. Ct. 226; Water Co. v. Clark, 143 U.S. 1, 12, 12 Sup. Ct. 346. In Tomlinson v. Jessup, above cited, referring to the reserved power to amend and repeal, this court said: 'The object of the reservation, and of similar reservations in other charters, is to prevent a grant of corporate rights and privileges in a form which will p eclude legislative interference with their exercise if the public interest should at any time require such interference. It is a provision intended to preserve to the state control over its contract with the corporators, which, without that provision, would be irrepealable, and protected from any measures affecting its obligation. There is no subject over which it is of greater moment for the state to preserve its power than that of taxation. * * * Immunity from taxation, constituting in these cases a part of the contract with the government, is, by the reservation of power such as is contained in the law of 1841, subject to be revoked equally with any other provision of the charter whenever the legislature may deem it expedient for the public interests that the revocation shall be made. The reservation affects the entire relation between the state and the corporation, and places under legislative control all rights, privileges, and immunities derived by its charter directly from the state.' So, in Railroad Co. v. Maine, above cited: 'By the reservation in the law of 1831, which is to be considered as if embodied in that act [one subsequently passed], the state retained the power to alter it in all particulars constituting the grant to the new company, formed under it, of corporate rights, privileges, and immunities. The existence of the corporation and its franchises and immunities, derived directly from the state, were thus kept under its control.'

In our consideration of the question of contract, we have assumed, in harmony with the judgment of the court of appeals of Kentucky, that the property in question was held by the city only for the profit or convenience of its people collectively; that is, in its proprietary, as distinguished from its governmental, character. There are cases adjudging that the extent of legislative power over the property of municipal corporations, such as incorporated towns and cities, may depend upon the character in which such property is held. Mr. Dillon, in his work on Municipal Corporations, says: 'In its governmental or public character, the corporation is made, by the state, one of its instruments, or the local depositary of certain limited and prescribed political powers, to be exercised for the public good on behalf of the state, rather than for itself. In this respect it is assimilated, in its nature and functions, to a county corporation, which, as we have seen, is purely part of the governmental machinery of the sovereignty which creates it. Over all its civil, political, or governmental powers, the authority of the legislature is, in the nature of things, supreme and without limitation, unless the limitation is found in the constitution of the particular state. But, in its proprietary or private character, the theory is that the powers are supposed not to be conferred, primarily or chiefly, from considerations connected with the government of the state at large, but for the private advantage of the compact community, which is incorporated as a distinct legal personalty or corporate individual; and as to such powers, and to property acquired thereunder, and contracts made with reference thereto, the corporation is to be regarded quo ad hoc as a private corporation, or at least not public in the sense that the power of the legislature over it, or the rights represented by it, is omnipotent.' 1 Dill. Mun. Corp. (4th Ed.) pp. 107, 108, § 67, and authorities cited.

If, however, the property in question be regarded as in some sense held by the city in its governmental or public character, and therefore as public property devoted to public purposes,-which is the interpretation of the state constitution for which the city contends,-there would still be no ground for holding that the city had in the act of 1886 a contract, within the meaning of the constitution of the United States. A municipal corporation is a public instrumentality, established to aid in the administration of the affairs of the state. Neither  ts charter nor any legislative act regulating the use of property held by it for governmental or public purposes is a contract, within the meaning of the constitution of the United States. If the legislature choose to subject to taxation public property held by a municipal corporation of the state for public purposes, the validity of such legislation, so far as the national constitution is concerned, could not be questioned.

In City of New Orleans v. New Orleans Waterworks Co., 142 U.S. 79, 91, 12 Sup. Ct. 147, after referring to previous adjudications, this court said that the authorities were full and conclusive to the point that a municipal corporation, being a mere agent of the state, 'stands in its governmental or public character in no contract relations with its sovereign, at whose pleasure its charter may be amended, changed, or revoked, without the impairment of any constitutional obligation, while with respect to its private or proprietary rights and interests it may be entitled to the constitutional protection.' Chancellor Kent, in his Commentaries, says: 'In respect to public or municipal corporations, which exist only for public purposes, as counties, cities, and towns the legislature, under proper limitations, has a right to change, modify, enlarge, restrain, or destroy them; securing, however, the property for the uses of those for whom it was purchased. A public corporation, instituted for purposes connected with the administration of the government, may be controlled by the legislature, because such a corporation is not a contract, within the purview of the constitution of the United States. In those public corporations there is, in reality, but one party, and the trustees or governors of the corporation are merely trustees for the public.' 2 Kent, Comm. (12th Ed.) *306. Dillon says: 'Public, including municipal, corporations, are called into being at the pleasure of the state; and while the state may, and in the case of municipal corporations usually does, it need not obtain the consent of the people of the locality to be affected. The charter or incorporating act of a municipal corporation is in nosense sense a contract between the state and the corporation, although, as we shall presently act of a municipal corporation is in no not, indeed, in favor of the corporation or rather the community which is incorporated, may arise under it. Public corporations, within the meaning of this rule, are such as are established for public purposes exclusively,-that is, for purposes connected with the administration of civil or of local government; and corporations are public only when, in the language of Chief Justice Marshall, 'the whole interests and franchises are the exclusive property and domain of the government itself,' such as quasi corporations (so called), counties, and towns or cities upon which are conferred the powers of local administration. Subject to constitutional limitations presently to be noticed, the power of the legislature over such corporations is supreme and transcendent. It may, where there is no constitutional inhibition, erect, change, divide, and even abolish them, at pleasure, as it deems the public good to require.' 1 Dill. Mun. Corp. (4th Ed.) p. 93, § 54.

In any view of the case, there is no escape from the conclusion that the city of Covington has no contract with the state exempting the property in question from taxation which is protected by the contract clause of the national constitution.

Perceiving no error in the record of which this court may take cognizance, the judgment is affirmed. 

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