Kentucky Union Railroad v. Bourbon County
2 S.W. 687
Ky. Ct. App.
1887
Check Treatment

Lead Opinion

JUDGE LEWIS

DELIVERED THE OPINION OB THE COURT.

May 9, 1885, the Bourbon county court, composed of tbe presiding judge and a majority of tbe justices of tbe peace, made an order directing tbe sheriff to bold an election at tbe usual voting places in tbat county, to ascertain whether or not a subscription of *106four thousand shares of stock of one hundred dollars each to the capital stock of the Kentucky Union Railway Company, payable in the bonds of the county, should be made- by the county court for and on behalf of the county, upon the terms and conditions set forth in the order. - In that order is the following provision: “And the sheriff is directed to have such election in the Paris precincts so held as to have the votes of all voters residing in the limits of the city of Paris, as they existed under the act of March 5, 1868, made and received separately from the votes cast by the remainder of the county, it being provided by an act approved March 18, 1876, that no tax should be imposed upon the property of those residing outside said limits, unless the votes of a majority of the voters then residing outside said limits shall be cast in favor of said subscription and tax.” It was further provided that “the vote for subscription shall not be binding upon the citizens and property in that portion of the county embraced in what were the limits of the town of Paris as they existed under the act of March 5, 1868, unless by law the same is also binding upon the citizens and property of the county outside said limits.”

It appears, and is agreed, that at the election held in pursuance of that order, the whole number of votes cast in the county in favor of the subscription of stock was two thousand two hundred and thirteen, and the whole number against it one thousand six hundred and fifty, and that there were cast by voters of the county residing outside the limits of the city of Paris, as they existed under the act of March 5, 1868, in favor *107of the subscription, one thousand three hundred and five votes, and against it one thousand five hundred and forty-seven. But, nevertheless, the county court, composed of the presiding judge and justices, on June 5, 1885, after first reciting that the returns of the special election held May 23, 1885, had been laid before, examined and considered by the court, and that It appeared a majority of- the votes cast at said •election was in favor of said subscription, and the proposition to subscribe' to the capital stock of the Kentucky Union Railway Company had been duly accepted by a majority of the legal voters of said county, according to the provisions of the charter of said company, made an order that the court then, by Its agent, J. M. Hughes, appointed for the purpose, subscribe the number of shares of stock mentioned in the order of May 9, 1885, and upon the terms and conditions therein contained. And, thereupon, J. M. Hughes as agent, did, in presence of the court, make the subscription, and it was adopted and approved by the court.

This action was instituted June 12, 1885, by J. W. Eerguson and others, residents and tax-payers of Bourbon county, against the Kentucky Union Railway Company, the presiding judge and justices of the peace of Bourbon county, and J. M. Hughes, the county clerk, and in their petition they ask that the company be compelled to surrender the subscription of stock made in the manner mentioned, and the same be adjudged void and of no effect; that the presiding judge be enjoined from executing or delivering said bonds, and the members of the county court from *108levying or collecting any tax to pay the subscription of stock on the bonds that may be issued. The same relief was asked in the cross-petition of Bourbon county, filed by the presiding judge of the county court. Upon final hearing, it was adjudged by the lower court that the subscription of stock is void and of no effect, and that the county court be enjoined from issuing any bonds, .or levying any tax on account of said subscription of stock; and from that judgment the Kentucky Union Railway Company has appealed to this court.

The authority under which the county court acted in making the subscription of stock complained of, and upon which appellant relies, is section 19 of the act of 1854, incorporating appellant, which is as follows: “It shall be lawful for the county court of. any county * * through which said railway, or its-branches may be located, and they are hereby authorized to subscribe and hold stock in said company upon, the same restrictions as other, stockholders, provided it shall first be submitted to vote of the legal voters of such county * * to be held and taken at such times and places and in such manner as said authorities respectively may appoint, whether or not stock shall be subscribed and taken; and if when the vote be taken it shall appear that a majority of the votes, shall be in favor of such subscription, it shall thereupon be lawful for such county court * * by county court, city or town authorities, by agents by them appointed, to subscribe and take in said company such amounts of stock as they shall determine,, and to issue the bonds of such county, city or town, *109payable with interest at snch times and places as they may deem proper, and dispose of the same for the payment of snch subscription, and pledge the faith and resources of such county, city or town for the payment of such bonds and interest, and they shall, from time to time, levy and collect such tax, ad valorem, upon all taxable property in their respective jurisdictions as shall be necessary to pay said bonds and installments of interest as the same become due, or to create a sinking fund for the gradual reduction of the same, provided that the rate of interest on the bonds shall not exceed ten per centum per annum. Or the funds to pay for such subscription of stock may be raised by such county court, city or town authorities, by an ad valorem tax on the taxable property in them respective jurisdictions, in such sums or installments as will meet such subscriptions,” etc.

On the other hand, appellees insist that the vote in this case could not have been legally taken in any other manner, nor the subscription of stock made upon any other condition, than are prescribed in an act approved March 18, 1876, which is as .follows: “An act regulating the manner of voting in Bourbon county on questions of tax for subscription to railroad companies.

“Be it enacted, * * that in all votes of subscription and taxation therefor for railroad purposes, hereafter to be made within the county of Bourbon, the' portion of the county outside the limits of the city of Paris, as they existed under the act of March 5, 1868, shall vote ■separately from the portion of the county embraced within said limits ; and no tax shall be imposed for said *110purpose upon the property of those residing outside said limits, unless the votes of a majority of the voters thus residing outside said limits shall be cast in favor of such subscription and tax.”

It is contended for appellant that act has no application to the vote we are considering, because the question authorized by section 19 of the act of 1854 to be submitted, and which was submitted and voted on, is,, “whether or not stock shall be subscribed,” whereas,, the act of 1876 relates merely to “questions of tax for subscription for railroad purposes ;” and in support of that position, the case of Bullock v. Curry, 2 Met., 171, is cited. There it was held that the submission of the question of subscription merely, though voted for by a majority, was not sufficient to justify the action of the county court in levying the tax, because the statute in that case provided in express terms that, before a subscription could be made or tax levied, the question of levying the tax should be submitted. That case shows what can not be disputed, that there is a distinction between a subscription of stock and levy of tax, and that a vote for the former without authority of law will not justify the latter. It was not, however, there decided that it would have been improper to submit to' the voters the question of subscription as well as that of levying the tax. For every proposition of that kind should contain the terms and conditions of the subscription, and the manner, provided by the act authorizing the vote, in which it is to be.paid. But that case has no bearing on the construction of the act of 1876, which must be determined by its own terms and the purpose of its passage. By it the Legislature, in our opinion, in*111tended to so amend section 19 of the act of 1854, and all other railroad charters applicable to the connty of Bourbon, as that thereafter no subscription of stock should be made in behalf of that connty, nor taxes to pay it imposed upon voters residing outside the limits mentioned, against the will of a majority of them. For “subscription of stock and taxation therefor,” are mentioned in the act connectively, and according to a fair construction, made to depend upon the same condition. It seems to us, if the provisions of the act of 1876 do not apply to appellant’s charter, they are utterly without force or meaning.

But it would not avail even if the operation of the statute was limited to the question of taxation. For there can be no valid and enforceable subscription of stock by the county court on behalf of a county without power to levy and collect taxes to satisfy it, that being the only mode by which it can be paid. And if made in the absence of such power, or in violation of the condition upon which it is delegated, the subscription would be worthless and void.

It then being evident that section 19 of the act of 1854 is, so far as it authorizes a subscription for Bourbon county, without the assent of a majority of voters residing outside the limits indicated, repugnant to the act of 1876, it follows that the subscription in question was made by the county court without authority of law and is void, if the latter act is valid and in force. Whether it is or not, therefore, becomes a vital question in this case, and we will now consider the several grounds upon which it is disputed:

1. It is argued that it violates section 3, article 2, of *112the Constitution, which declares that “no law enacted by the General Assembly shall relate to more than one subject, and that shall be embraced in the title.”

This court has uniformly held that this provision should receive a reasonable, not a technical construction. And the rule laid down in Phillips v. Covington and Cincinnati Bridge Company, 2 Met., 219, has never been departed from. It is this: uNone of the provisions of a statute should be regarded as unconstitutional when they all relate, directly or. indirectly, to the same subject, have a natural cpnnection, and are not foreign to the subject expressed in the title.” Tested by this rule, we think none of the provisions of the act are liable to the objection made. The subject of the title of the act is, “the manner of voting in Bourbon county on questions of tax for subscription to railroad companies.” There seems to be no objection to the first clause. But it is contended the subject of the second clause is not embraced in the title.

The phrase “manner of voting,” literally interpreted, applies simply to the act of voting, which is provided for in the Constitution, but, by itself, signifies nothing. It is therefore plain that a more comprehensive meaning was intended and should be given to it. And, if so, ,why may it not fairly be applied to the counting of the votes and ascertaining the result of the voting? It seems to us there is a natural connection between “regulating the manner of voting” and prescribing rules or tests by which-to determine and declare the result, which was the object of the clause in question. Moreover, any one reading or hearing read the title, would be informed that the act *113was intended to regulate the manner of voting in a particular county, and on a particular question, independent of any other statute, and therefore readily infer that it contained the necessary provision for •determining the result of such election.

2. It is next contended that the act violates section 1, article 10, which declares that “all freemen, when they form a social compact are equal, and that no man or set of men are entitled to exclusive, separate, public emoluments or privileges from the community, but in consideration of public services,” and also section 7, which provides that “all elections shall be free and equal.”

The argument of counsel to some extent is based on a mistake as to the true construction and effect of the statute. - In our opinion the only subscription of stock allowable under the act is one made for and on behalf of Bourbon county, binding on and payable by the whole, not a portion of the county. And, consequently, if the subscription be legally made, all the property of the county alike, without regard to its location or the residence of the owner, may be taxed to pay it; but if not so made, none can be taxed. There can under the act, as we construe it, be no inequality or discriminations between tax-payers, in the assessment of taxes, as is contended. Tire act in substance provides that no tax shall be imposed for the subscription upon property of those residing outside the limits of the city of Paris as they existed under the act of 1868, unless a majority of them vote in favor of the subscription and tax. But, obviously, it was not intended that in case a majority of them voted against the prop*114osition the whole burden, or any burden at all, should, fall on those residing within these limits. The meaning and effect of the act is to require not only a majority of all the votes cast in the county, which sufficed under section 19 of the act of 1854, but also a majority of those residing outside the limits mentioned, in order-to authorize the subscription and tax. And thus construed, is the act in violation of either of the provisions of the Constitution quoted?

In considering this question it must be kept in .view that the power of a county court to make a subscription of stock for the county, and to levy taxes to meet it, is conferred by express grant, to which the Legislature may annex any conditions not repugnant to-the Constitution, or withhold it altogether in any case.. It may, as has been often held, authorize such subscription and levy for a county, or for specified districts-of a county contiguous to and supposed to be more directly benefited by a proposed railroad, exempting, others more remote, or already accommodated with a railroad. It may require a majority of those voting, or a majority of all the votes of the county, or of each district affected, or more than a majority of all, in order to authorize a subscription and tax. While there may be restraints upon the power of the Legislature to impose local burdens for the construction of railroads, or other enterprises projected by and for the-benefit of private corporations or individuals, there is and ought to be full legislative discretion and power to prevent unjust, oppressive and improvident taxation for such purposes, against the will of those upon whom the burden principally falls.

*115Enforced subscription of stock against the will of the minority to be taxed therefor could not be tolerated except upon the assumption that from the investment the tax-payer will receive a return, and that the advantage to the county or district taxed will compensate for the burden imposed. But experience teaches that a return of dividends upon taxes paid to build railroads is generally delusive, while a sense of justice dictates that residents of a county, or portion of a county, already accommodated with a railroad, and having no interest in the new enterprise, should be protected against a reckless and improvident imposition of taxation, by those who will bear no part of the burden, combined with others who are more immediately and directly interested. And, in our opinion, the Legislature has the undoubted power to provide against such injustice by needful restrictions upon the power to tax for such purposes.

The act of 1876 does not confer the apparently undue influence upon those residing outside the limits- of Paris in order to enable them to vote the subscription and tax against the will and to the detriment of those residing inside the limits. For to do so requires a majority of all the votes of the county cast at the election, and in making up such majority the votes of all are of equal weight. But the purpose and effect of the act is to protect the class mentioned against the imposition of taxes, about seven-eighths of which they will have to pay, for the construction of railroads by others, and -without their consent, and in which some of them may not have any direct interest. YYe do not understand how an act thus intended, and *116which operates as a mere safeguard against what might be a heavy and unjust local burden, imposed for the immediate benefit of the owners of a railroad charter, can be regarded as the grant of exclusive privileges and emoluments. The statute is intended to protect and conserve the interests and rights of a district or geographical division of Bourbon county, and does not confer, directly or indirectly, a personal privilege at all, much less an exclusive privilege in the meaning of the Constitution. .

In our opinion, the act of 1876 is not invalid for either the reasons mentioned, or any other.

The next ground relied on for reversing the judgment is want of jurisdiction in the circuit court, it being contended that the act of the county court complained of is judicial and not ministerial, and that the only remedy of appellees was by appeal to the circuit court.

Section 19 of the act of 1854, under the authority of which the vote was taken and the subscription made, is not mandatory, but merely permissive in its terms, and .appellant had no fixed or vested interest in the subscription until after it was made, nor right to demand such subscription. Nor, on the other hand, was it bound to accept the subscription when made. Consequently, there was no opposing or diverse interests or rights for the county court to determine and adjudicate. But the duty was imposed to perform the ministerial act of ascertaining the result of the election, and, as agent of the county, to subscribe or not the stock. The power of the circuit court to declare a subscription of stock made by the county court without authority of law void, and enjoin collection of tax to pay it, has been *117often upheld by this court and never denied. In Bullock v. Curry, 2 Met., 171, this court held that, even after the subscription had been made and bonds issued, the circuit court had jurisdiction to interpose at the suit of tax-payers, and enjoin the collection upon the ground that the county court had no authority to subscribe the stock, because the proposition was not submitted to the voters in the form required by the statute. Though, it is proper to state the bond-holders were not before the court in that case. Jurisdiction of the circuit court in such cases was held to exist in Bowling Green and M. Railroad Co. v. Warren County Court, 10 Bush, 711; Mercer Co. Court v. Kentucky River Navigation Co., 8 Bush, 300, and Judge of Campbell Co. Court v. Taylor, 8 Bush, 206. We are, however, referred to the case of . Shelby County Court v. Cumberland and Ohio Railroad Co., 8 Bush, 209. In that case, there was a proceeding by mandamus to compel the county court to issue the bonds, a subscription of stock having already been made, and it was held that the county court, in deciding upon the question of compliance by the company with the various conditions upon which the subscription was voted, and in which another railroad company had an interest, acted judicially. But in this case there was a subscription without any question being raised or determined in which appellant had an interest.or the right to litigate.

In our opinion, the statute of 1876 being valid and in force, the county court had no authority to subscribe the stock in violation of the conditions contained in that act, which was done, and the subscription so made must be held void and of no effect.

Judgment affirmed.





Dissenting Opinion

Judge Holt

delivered the following dissenting opinion :

If I were in doubt as to what seems to me to be the main question in this case, my high regard for the opinion of the other members of this court would solve it.

However questionable may be the policy of municipal subscriptions to railroads, and other like public enterprises, their legality, when made under legislative saner tion, is now, by reason of an unbroken line of decisions extending from the Supreme Court of the United States to that of nearly every State in the Union, beyond doubt. The question of their expediency is for the Legislature, and not the courts. The result of this litigation may vitally affect the interests and future development of a large portion of our State ; while, upon the other hand, if the subscription now in question be held valid, it may prove a grievous burden to a particular locality. These considerations, however important, as they are, can not be allowed to produce a particular conclusion, but should induce careful investigation and consideration.

The case of the Shelby County Court v. C. & O. Railroad Company, 8 Bush, 209, renders it at least a doubtful question whether the action of the Bourbon county court in making the subscription was judicial and not ministerial, and, therefore, not subject to question by this character of proceeding. It is also at least questionable whether the second clause of the act of March 18, 1876, is not open to objection by reason of the constitutional provision that no law shall relate to more than one subject, it to be expressed in the title. I pass these questions by, however, as another is to my mind *119•decisive of the case ; and enter upon its discussion, recognizing the well-settled rule that the constitutionality of a legislative act is to be presumed. If a matter of •doubt, it is to be so resolved. Slight implication or vague conjecture will not suffice to set it aside upon this ground; but when clearly unconstitutional, it is •one of the highest duties of a court to do so, not upon the ground that the judicial power is superior to the legislative, but because its action is in violation of the fundamental law, and it is the duty of the court to so declare.

Under the nineteenth section of the act of 1854, the right of a majority of the voters of Bourbon county to vote the subscription is indisputable. The effect of the act of March 18, 1876, is to so abridge it that no ¡subscription or tax for railroad purposes can be made ■or imposed upon the property of the county unless a majority of the voters outside of the city limits, ¡as they existed in 1868, vote for it. Such legislation ■is partial and unequal. It violates not only the spirit of the Constitution but its express provisions, and is destructive of that sense of equality that created it. I concede that the legislative power over the subject is supreme, save as restrained by our Constitution; .and that it can impose whatever limitations it pleases, provided they do not violate the fundamental law; but when it creates inequality of privilege, and attempts to say that the vote of one tax-payer shall ■count, while that of another shall not, when the question relates to the imposition of a tax upon all the property of the county, it passes its constitutional limit. It must be borne in mind that it is a question *120whether the burden shall be imposed upon all the property in the county — in the city of Paris, as well as out of it. It is also a question whether the taxpayer living in one locality as well as in the other, shall have a voice as to the expected benefit to the county to be derived from the building of the road. If the right to vote upon this question is given to-one tax-payer, then it must be given to all with like-effect and weight. This is a constitutional right.

The first section of the Bill of Rights ■ provides :■ “That all freemen, when they form a social compact, are equal, and that no man or set of men are entitled to exclusive, separate, public emoluments, or privileges from the community, but in consideration of public: services;” while the seventh section says: “That all elections shall be free and equal.” It is urged that these grand declarations do not refer to a case like' this one; but to offices and political matters or the machinery of government only; and that the vote of the electors is but an agency used by the Legislature-to determine whether a conditional law shall become-operative. Also, that the power is not given the privileged class of voters to impose any burden on the others, but merely to cast a negative vote by way of defeating a tax.

The power of taxation is essentially a governmental one. None affects the elector more. The legislative acts under consideration make him the controlling-power as to the imposition of the tax, and the reception of the expected benefit from the construction of' the road. The right to subscribe for such a purpose, and the implied duty then arising upon the part of the *121municipality to pay tlie subscription by taxation, is based upon the idea that a public benefit is to accrue from it. Each elector is, therefore, interested in the question ; and granting that he is but an agency of the Legislature, yet when it makes him such, and gives him a voice in the matter with another elector as to this question of common benefit, the right must be equal, and the one not privileged above the other.

It is none the less a forbidden privilege or partial legislation, because it merely gives the one the right to defeat the imposition of a tax, and puts no burden upon the other. It does create an inequality of privilege, and an unequal voice in the matter, because it says that the one may defeat the expected common benefit without regard to the wish of the other elector, and it is not, therefore, a mere shield. Thus, although there may be a majority of a thousand votes in the city of Paris for a measure which concerns them as much as the .balance of the county, yet a majority of one vote in the territory outside of the city controls — one vote overcomes a thousand where all are equally interested. Upon the other hand, suppose the city votes a thousand majority against it; yet, if upon a count of the entire vote of the county there be one majority for it, the subscription must be made. The act in question, however, goes farther than this. It does not merely disfranchise electors as to a matter of common interest, but it creates an inequality of privilege among the tax-payers or persons standing upon the same footing. Of course the Legislature may say that one precinct in a county shall alone vote upon such a question, upon the idea that it alone will reap the expected benefit; but in such a case the *122tax must be imposed upon it alone. Grant also that the Legislature may require the assent, for instance, of two-thirds of the tax-payers of the county before a subscription can be made. Yet in this instance, the vote of the tax-payer in one locality of a county, teh whole of which is to be affected by the imposition of the tax or benefited by the building of the road, is omnipotent to defeat the votes of the tax-payers in another portion of the county. In fact, they do not count at all, if he votes differently. A majority of one outside of the limits of the city of Paris, and which vote may be cast by one who is not a tax-payer, renders nugatory the votes of all the tax-payers in the city. Thus an unequal effect is not only given to the votes of the electors, but to those who are tax-payers. The idea that one vote may in effect disfranchise hundreds of electors equally interested in the question is, to my mind, utterly inconsistent with that equality of right which is the life of our Constitution.

There are other objections to the act of March 18, 1876. The taxation of real estate for local purposes depends upon its situs, and not the residence of the owner. Under the act of 1854, the city of Paris may subscribe stock in the road, and the owner of city property, although resident elsewhere, must pay the tax. The act of 1876, however, provides that no tax shall be imposed upon the property of those residing outside of the city, unless a majority of the voters residing without the city limits vote for it. Thus the right to tax is made to depend upon the residence of the owner, and not upon the location of the property ; and if the city were to take stock in the road, as it may do under the *123act of 1854, yet if A owns one-lialf of the property in the city, but resides elsewhere in the county, it is not taxable, thus creating inequality of taxation.

Again: the act of 1876 provides that a majority of the votes outside of the city limits, as they existed in 1868, is to govern, and not as they may exist at the time of taking the vote. It appears that these limits were larger in 1868 than now; and it results that those living between the two lines are residents of the county and not of the city, save when a vote is to be taken as to a subscription to a railroad, and then they are city residents. In this way electors, who in fact live in the country and not in the city, are in effect disfranchised. The will of the majority who now in fact live outside of the city may be defeated by a majority of one vote of those who resided outside of the city limits in 1868 ; gnd yet those living between the two lines must help to bear the burden if a tax be imposed, and are equally interested in the expected benefit.

Entertaining these views, I regret that I can not concur with my associates in an affirmance of the case.