87 Ky. 605 | Ky. Ct. App. | 1888
delivered the opinion oe the court
As these four cases require the same recital of facts, and directly or incidentally involve the same questions of law, counsel have agreed they he heard and decided together.
In 1851 a corporation, “The Henderson and Nashville Railroad Company,” was chartered to construct a railroad from Henderson, Kentucky, to Nashville, Tennessee. But after securing the right of way and grading a portion of it — how much does not appear—
The first of these actions in order of time was instituted by the county of Hopkins against the Louisville and Nashville Railroad Company to recover a balance unpaid of taxes alleged to be due by the defendant on its property situated in that county, under a levy made by the county court for the year 1882, to pay interest on the bonds issued in payment of the county’s subscription' to the capital stock of the Evansville, Henderson and Nashville Railroad Company, before mentioned, and taxes alleged to be wholly due and unpaid under levies for the same purpose for each
In the first and second of these four actions the entire property of the defendant, being thirty-one and four-fifths miles of road, including land, improvements and equipments in the county of Christian, and twenty-seven and seventy-two hundredths miles of road, land, improvements and equipments in the county of Hopkins, were adjudged by the lower ■court liable for taxes levied to pay the said bonded indebtedness of the two counties respectively, as well .as for those levied to pay the ordinary county expenses,
There is no controversy about the assessment of the-property in the two counties, as they were made by the county courts according to the rate fixed by the State Board of Equalization for the entire road within the State.
Whether railroad property situated in a county is. liable to taxation to pay the subscription of stock made by such county towards constructing the road, is a question which was first presented to and decided by this court in Applegate v. Ernst, 3 Bush, 648. It was there held not to be liable, the following language-being used: “If liable for any portion of that subscription, it would to that extent pay the debt of the stockholders, or remit so much of the amount subscribed to itself, and consequently would get that much less than the subscription to it, or for its use. * * To tax the road itself for that selfish purpose would be repudiation to the extent of the tax.” The rule there laid down does not, however, absolutely and fully apply when the road has been purchased by and become the property of a new company, to which the county does not sustain the relation of stockholder or joint owner.
In all the cases wherein it has been decided by this court taxes illegally paid might be recovered back, including Fecheimer Bros. & Co. v. City of Louisville, 84 Ky., 306, referred to by counsel, the payments were regarded as involuntary, because the tax collector had authority to levy and sell on the refusal to pay. As said by this court, “the process is summary, and in the hands of the party making the demand, and the tax-payer must submit to the levy or pay the money.” The only exception under the statutes of this State exists in respect to railroad corporations whose property, from considerations of public convenience and necessity, can not be levied on and sold to pay taxes, and the collection must be enforced by judicial proceedings.
. The payment by the Louisville and Nashville Railroad Company of the .taxes which it now seeks to recover back from the counties of Christian and Hop-, kins, was made voluntarily, and in no sense under compulsion. And such being the fact, we perceive no reason to make in these cases an exception to the general rule laid down in City of Louisville v. Anderson, that a party paying taxes who is entitled to a
3. It is well-settled that interest is not allowable upon taxes by way of damages (Ormsby v. Louisville, 79 Ky., 202); and, consequently, the court did not err in refusing to allow it upon the amounts adjudged in favor of the two counties.
Wherefore, the judgments rendered in actions one and two in favor of the counties of Christian and Hopkins are, for the reasons indicated, reversed, and remanded for further proceedings consistent with this opinion, and affirmed on the cross-appeal. And the judgments in the third and fourth actions are affirmed.