128 Ky. 790 | Ky. Ct. App. | 1908
Reversed.
By thisiaction in equity instituted in the court below the appellant, Commonwealth of Kentucky, sought to recover of the appellees Louisville Property Company and the Louisville & Nashville Railroad Company certain lands situated in Bell county and particularly described in the petition, the title to which it is alleged is held by the Louisville Property Company for the use and benefit of the Louisville & Nashville Railroad Company, under some sort of arrangement between them, the nature and object of which is to enable the railroad company to engage in mining coal upon and from such lands, of which it is alleged to contain large quantities. The petition contains the averments, in substance, that the lands in question were held by the Louisville Property Company for more than five years before the institution of the action, and that none of it during that time was used by that company in its legitimate business, or was necessary for use in its business, for which reason it had escheated to the Commonwealth of Kentucky, and that the Commonwealth'was and is therefore entitled to recover the. property. It appears from the petition and the articles of incorporation of the Louisville Property Company, filed therewith as an exhibit, that “its business shall be that of purchasing, holding, leasing, selling, conveying, and otherwise using, managing, and disposing of all kinds of property, whether real, personal, or mixed, wherever situated in the United States of America.” It further appears from the averments of the petition that the Louisville & Nashville Railroad Company is a corporation,'chartered under the laws of this State, and that it owns and operates a system
“This agreement made this 27th day of April, 1907, by and between S. W. Hager, Auditor of the State of Kentucky, party of the first part, and George L. Pickett, attorney at law of Shelbyville, Shelby county, Ky., party of the second part, witnesseth: That the said party of the first part has this day employed said party of the second part, pursuant to section 1622 of the Kentucky Statutes of 1903, to institute such suit or proceedings as may be necessary to recover for the Commonwealth of Kentucky, any property which is escheated to the Commonwealth of Kentucky. Said second party agrees to prosecute and attend to all of such claims in a careful, diligent, and skillful manner, and in consideration for full compensation for all services rendered by him to the Commonwealth in this employment he shall receive a sum equal to 30 per
“In testimony whereof witness the hand of S. WHager, this the 27th day of April, 1907.
“[Signed]' S. W. Hager, Auditor.
“I, N. B. Hays, Attorney General of the State of Kentucky, approve the employment of George L. Pickett, as set out in the above contract upon the terms and conditions thereof.-
“ [Signed] N. B. Hays, Attorney General.
“Approved.
“ [Signed] J. C. W. Beckham, Governor.”
Upon the hearing the'circuit court held the response insufficient; adjudged that the contract between the Auditor and Pickett did not confer upon the latter or his associate counsel authority to bring or maintain the action; made the rule absolute, and dismissed the action, at the cost of the attorneys. Prom that judgment this appeal is prosecuted.
The lands sought to be recovered for the State are claimed as escheated property under section 192, Const., and section 567, Ky. St. 1903. Section 192, Const, provides: “No corporation shall engage in business other than that expressly authorized by its charter, or the law under which it may have been or hereafter may be organized, nor shall it hold any real estate, except such as may be proper and necessary for carrying on its legitimate business for a longer period than five years, under penalty of escheat.” Section 567, Ky. St. 1903, is as follows: “No corporation shall engage in business other than expressly authorized by its articles of incorporation or amend
Who, therefore, is authorized to recover the lands subject to escheat under section 192, Const., and section 567, Ky. St. 1903? It is not to be presumed that
It would, perhaps, be in accord with the law as well as the policy of the State to say that the employment of Pickett was also authorized by sections 114 and 115, Ky. St. 1903; the first giving to the Auditor au
It is insisted by counsel for appellees that the petition is fatally defective, and therefore fails to state a cause of action against either of the appellees. That question is not before us for review, and we, therefore, decline to pass upon it. It will, however, arise upon the return of the ease to the lower court, and that court will first decide whether the petition states a cause of action, and, if so, whether the grounds exist for the escheat of the lands sought to be recovered, as specified in section 192, Const., and section 567, Ky. St. 1903; the burden being upon the Commonwealth to prove the conditions authorizing such escheat.
For the reasons indicated, the judgment is reversed, and cause remanded for further proceeding consistent; with the opinion.