Marion County v. Louisville & Nashville Railroad , 91 Ky. 388 ( 1891 )

CHIEF JUSTICE HOLT

delivered the opinion op the court.

The Marion County Court, for the year 1886, levied for county purposes not only a head tax, but twenty cents for turnpike roads and thirty cents for general purposes upon each one hundred dollars of taxable property in the county. In 1887 it levied the same head tax, and also ten cents jail tax, twenty cents turnpike tax, and fifteen cents for county indebtedness upon each one hundred dollars of taxable property. The appellees paid the turnpike tax of 1886, but resist the payment of the thirty cent tax of that year for general county purposes.

The tax of 1887, to pay for the building of the county jail, is not in contest. It is suggested that it has been paid; but the appellees deny the right, of the county to compel the payment for 1887 of the twenty cent turnpike tax and the fifteen cent tax to pay county indebtedness.

The answer denies the existence of any legislative authority in the county court to levy the turnpike tax. The act of April 19, 1882, however, expressly gives it (2 vol., Acts 1881, page 664), and the power is conceded in argument; but it is said there was no turnpike debt in 1887, and that a tax levy to pay what is not owing is void, because there is no taking of private property for public use, but a taking when no use exists. It appears, however, that in 1885 there was a deficit as to the county indebtedness of several thousand dollars. It was carried to 1886, when it was still more. We can not tell how much of it was turnpike indebtedness. This is not shown by the record, but at least a portion of it accrued on that account. The money to pay this deficit was borrowed from the sinking fund of the county, and the county clerk testifies that at the time of giving his deposition (1889) it had not been repaid. While, therefore, there may not, in 1887, have been any turnpike debt eo nomine owing, yet an indebtedness existed which was created on account of it. It is said, however, that, considering the value of the property of the county, the turnpike tax of twenty cents for 1886 was certainly sufficient to discharge all the turnpike debt of the county existing in that year. This is not shown, however, and, as already stated, it was still owing at a subsequent date.

As to the levy in each year to pay the general indebtedness of the county, it is said that there was then no law authorizing the levy of an ad valorem tax for this purpose. This is true. The statute did not authorize such a tax, but only a head tax for county purposes .generally. The Legislature, however, passed an act on April 10, 1888, which, after reciting that these levies had been made and the existence of doubts as to their legality, declared them “valid, and in full force and effect as fully as if said county court of levy and claims had been empowered to levy said amount for the purposes mentioned in said levies.” (Yolnme 2, Acts 1887-8, page 1067.)

It is contended that the levies, when made, were void for the want of legislative authority to make them, and that the Legislature could not, therefore, by subsequent legislation, make them valid. The county court had power to levy a head tax to meet the general indebtedness of the county. It could not levy the particular tax in contest. It had power to act upon the subject; it had jurisdiction to levy a tax lor the purpose, but not one of a certain character. The power conferred was so restricted as not to embrace it. The levying of it, therefore, was a case of irregularity, and not of want of jurisdiction. If a town having legislative authority to create town liabilities contract one outside of its authority, but for a town purpose, the debt might undoubtedly be validated by retrospective legislation. This case, it seems to us, would fall within the same rule. Unquestionably, the Legislature could, in advance of the making of these levies, have authorized them; and where this is so, it may, by a subsequent healing statute, validate them, though no authority existed at the time of their creation. This legislative power is, of course, confined to validating acts which the Legislature could antecedently have authorized. The exercise of such a power is not forbidden by our State Constitution, and while retrospective legislation is, in the main, impolitic, yet the rule above stated has been often declared. (Cooley on Taxation, page 305.) These levies were not for an illegal purpose, They were permissible by legislative authority in advance. The power to pass the curative act, therefore, existed, and it is equivalent to an original authority. Acting upon this rule, it has been held that an act validating the void judicial sale of an infant’s property is constitutional; also an act validating municipal bonds void when issued; and validating a void power of attorney executed by a feme covert. (Thornton v. Mc-Grath, 1 Duvall, 354; Boyce, &c., v. Sinclair, 3 Bush, 261; Read v. Plattsmouth, 107 U. S., 568.)

There has been no impairment of any contract or vested right in this case. The rule relating to such cases has no application here. There is no contract between the tax-payer and the governmental power, which protects him and his property, and to which he must, therefore, pay the tax as a duty he owes to it, and instead of this curative statute impairing a vested right, it merely takes away the opportunity to avoid the discharge of a duty. The existence of general indebtedness by the county when these levies were made is virtually admitted, and if it were not, it is shown. • Equitably it was the duty of the appellees to discharge their fair proportion of it, and the act which is now assailed as unconstitutional merely prevents them from acting unjustly by refusing to bear their equal portion of a common burden, from the imposition of which they, equally with others, receive a benefit. The constitutional provision forbidding the impairment of a vested right by legislation was never intended to apply to such a case. One should have no vested right to do wrong or act unjustly, and courts decline to regard that as a vested right which is contrary to justice and the equity pi the case. These levies were of uniform operation. They imposed a public tax, common to all the tax-payers of the county, for a local purpose, which may be done. Nor can it be said that the Legislature has intervened in pending litigation, and thus invaded the domain of the judiciary. It is true if the Legislature, during the pendency of litigation, were to pass an act having a retroactive effect in favor of one of the litigants, it would be an invasion by one independent department of the government of another, and, therefore, unconstitutional. (Thweatt, &c., v. Bank of Hopkinsville, 81 Ky., page 1.) But this has not been done in this case. It is trae the act in ques tion was passed after the lower court, in another action- between these parties, had passed upon the validity of another levy for a different year by the Marion County Court; but this fact should not lead to our declaring this act unconstitutional. It does not relate to that litigation, and a court should not declare it unconstitutional, unless clearly required to do so.

For the reasons indicated, the judgment dismissing the petition is reversed, with directions to render a judgment in conformity to this opinion.