72 Ky. 247 | Ky. Ct. App. | 1872
delivered the opinion oe the court.
By an act of the General Assembly, approved March 19, 1870, Alfred T. Pope and certain other gentlemen were appointed commissioners, and authorized to open books and to solicit and receive subscriptions to the capital stock of “ The Louisville, Harrod’s Creek & Westport Railway Company.” It is provided that the capital stock of the company shall be one hundred and fifty thousand dollars, with the privilege of increasing it to five hundred thousand dollars if the necessities of the company shall demand such increase. The stock is to be taken in shares of one hundred dollars each, and may be subscribed for “ by any individual, city, town, precinct, county, or corporation; and as soon as one thousand shares shall have been subscribed, the subscribers thereof, their successors and assigns, shall be and they are here declared to be incorporated into a company by the name of the Louisville, Harrod’s Creek & Westport Railway Company,” etc.
Afterward this act was so amended as to add to the number of incorporators or commissioners several other persons.
On the 1st of July, 1870, four of these commissioners applied to the Jefferson County Court, and upon their motion the question was submitted to the qualified voters of Harrod’s Precinct, in that county, whether or not said court should subscribe to the capital stock of the company twelve hundred and fifty shares of stock, to be paid in the bonds of the precinct. At the election held pursuant to this order a majority of those voting pronounced in favor of the proposed subscription. It was accordingly made by the clerk of the county court in obedience to a subsequent order of said court; and at an election for directors, in which the county judge of Jefferson County voted the stock subscribed for Harrod’s Precinct, James Callahan, S. C. Metcalfe, John McFerran, Clarence Bate, and H. H. Buffenmeyer were declared elected.
This suit was instituted by a considerable number of the tax-payers about to be affected by the subscription for stock to enjoin and restrain the company and its directors, or either of them, from selling or otherwise disposing of these bonds.
It is sufficiently pleaded, and the record clearly shows, that when the application was made to the county court and the election ordered, and when the stock was subscribed or attempted to be subscribed for, the company had not been organized, and had not the right by the terms of the act of incorporation to organize. One thousand shares of the capital stock had not been subscribed for, and by the second section of the act this was made a condition precedent to the formation, of a company by the subscribers for stock.
The application to the county court was not made by the company, nor by its president nor its commissioner. The company had no existence, and no person was authorized to apply to the court, nor to specify the amount of stock to be subscribed for, nor the conditions upon which the subscription should be made.
The act, in express terms, provides that the power of the county court to submit to the qualified voters of a designated precinct the question whether it shall subscribe to the capital stock of the company on behalf of such precinct shall arise whenever the “ company, or the president or the commissioner thereof,” shall request it to do so.
Having no right or authority to act in the matter upon its own motion, the county court could take no steps looking to a subscription of stock by precincts or portions of precincts until applied to for that purpose by the president or commissioner of an organized company.
It is true that individuals, cities, towns, precincts, counties,
The mode by which and the time when subscriptions for stock may be made by towns, cities, and counties are not prescribed by the act; but specific limitations upon the power of those authorized to represent precincts and portions of precincts are carefully incorporated into it, and these limitations can not be disregarded.
It may be safely assumed that this special protection was given to the tax-payers of these quasi municipal subdivisions of territory for the reason that, unlike regularly organized political or municipal corporations, such as towns, cities, and counties, they have no officers directly responsible to them by whom they could be represented. • Such being the' case, it. was manifestly proper that the agency designated — the county court — should have no power to subject them to taxation, or even to call upon them to vote upon the question of taxation, until the construction of the proposed road should be assured by the organization of the company, and by the subscription for at least one hundred thousand dollars of its capital stock.
A careful consideration of the act leaves no doubt upon our minds that the legislature did not intend that precinct subscriptions should be included in the one thousand shares of stock necessary to be subscribed to authorize the company to organize and elect directors. If such had been the case, the commissioners appointed by the act would have been empowered to make application to the county courts to have the question of subscription by precincts or parts of precincts submitted to- the qualified voters thereof, instead of confining such authority to the company, its president, or commissioners.
It becomes necessary now that we shall consider another and an exceedingly delicate question. Three months after the petition herein was filed, and after appellee had answered, the General Assembly passed “An act to amend an act entitled an act to incorporate the Louisville, Harrod’s Creek & West-port Railway Company,” providing, among other things, as follows:
“ Section 4. And be it further enacted, that the vote cast by the judge of the County Court of Jefferson County for the Harrod’s Creek Precinct of said county in an election for directors of said company, on the 1st day of September, 1871, at which election James Callahan, J. C. Metcalfe, Clarence Bate, John B. McPerran, and H. H. Buffenmeyer were elected directors, be and the same is hereby declared legal and valid.”
“ Section 5. That the action of three or more of the commissioners named in an act to which this is an amendment, or of those named in an act referring to the company, approved March 22, 1871, in petitioning the judge of the Jefferson County Court to call an election in Harrod’s Precinct, and*253 also in calling a meeting of the stockholders for the purpose of electing a directory, is hereby declared to be legal and valid.”
By the first section quoted the action of the county judge in voting the stock claimed to have been subscribed by Harrod’s Precinct is attempted to be legalized; and if these amendments have the effect of making the subscription of stock valid, then it results that the right guaranteed to the stockholders by the fourth section of the original act of incorporation, of voting their stock in the election of directors, is taken from Harrod’s Precinct and given to a person who, so far as this record shows, does not live in the precinct, nor own one dollar’s worth of taxable property within its territory.
The power of the legislature to authorize the taxation of local communities for the purpose of assisting in the construction of public improvements in which they may be directly and specially interested may be regarded as settled in this state, but we are not aware that the doctrine has been carried so far as to authorize the General Assembly to deprive the community subjected to taxation for such purpose of the right guaranteed to all other stockholders of being heard in the selection of the officers who are to manage and control its business. But we waive an investigation of this point, as the liability of the precinct to pay the bonds depends not upon the legality of the election of the directors, but upon that of the subscription for the stock. It is insisted, and not illogieally, that the fifth section of this act was intended to remedy all defects and to legalize the subscription. It declares that the action of the commissioners named in the original act, and the amendment of March 22, 1871, in petitioning the judge of the Jefferson County Court to call an election in Harrod’s Precinct, and in calling a meeting of the stockholders for the election of a board of directors, “shall be legal and valid.”
As the case stood prior to the 20th of December, 1871, the company had in its possession certain bonds, executed and delivered by the county judge of Jefferson County, which it claimed were the bonds of Harrod’s Precinct, and for the payment of which these appellants could be lawfully taxed. Appellants insisted that these bonds had been issued and delivered without lawful authority upon the part of the county judge, and that they were not bound to contribute toward their payment.
"When the issue was thus made up in a court of competent jurisdiction the law was for the appellants, and the courts would have so adjudged; but before judgment the General Assembly intervened, and declared that certain acts, which were unauthorized and illegal at the time of their commission, should be deemed and held legal and valid. If this act be upheld, it must follow that in this state the legislature has power not only to make laws, but to determine what the law is, and that it can indirectly control the action of the courts by requiring a construction of existing laws different from that which they would have given if left untrammeled.
The judicial being a co-ordinate and independent department of the state government, can not consent that either one of the other departments shall interfere with it in the exercise of its exclusive right to determine the law of existing cases. As was said by this court in its opinion in the case of Gaines v. Gaines, &c. (9 B. Mon. 295), “it is to avoid the danger of individual rights being determined not by pre-existing laws, but by a law first promulgated in the decision itself, or made for it, or by the secret law of will or discretion, that the judi
Adhering to the. doctrine thus clearly and distinctly announced, we can not hesitate to declare that the act of the 20th of December, 1871, did not and could not affect the right of appellants to have a judgment rendered in their favor upon the facts presented by the record and the law as it existed at the time their petition was filed.
This conclusion is not inconsistent with any right the legislature may have to impose local taxation for proper county or municipal purposes, without referring the question to the people to be affected thereby. The act of March 20, 1871,
To this assumption or determination this court is unable'to give its assent; and impressed as it is with the conviction that the settlement of these questions is within the exclusive province of the judicial department of the state government, it is constrained to adjudge that the chancellor should have perpetually enjoined and restrained appellees from selling or in any way disposing .of the bonds delivered to them by the county judge of Jefferson County, and declared the same to be null and void.
His judgment is reversed, and the cause remanded for a judgment conformable to this opinion.