209 F. 573 | 6th Cir. | 1913
This is an appeal from an interlocutory order enjoining the individual appellants, one the clerk of the county coürt and the other the sheriff of Lewis county, from certifying a certain tax and giving the requisite notice for its collection for the benefit of the corporate appellant, and enjoining all the appellants from attempting to collect the tax. This tax is founded on the charter of the corporate appellant (hereinafter called turnpike company). The turnpike company was incorporated by special statute enacted April 24, 1890, “for the purpose of building and operating a turnpike road” something more than seven miles in length, between named points, in Lewis county. The road was to be located as near as might be along .an existing county road running parallel with the Ohio river. 2 Loc. & Priv. Acts 1889-90, p. 1385. This statute in terms created a special taxing district and imposed on each $100 worth of taxable property therein an annual tax of 50 cents, which was to commence in 1891 and continue until the road was “built and paid for.”
“Now, here is a remarkable case, as it strikes me. A turnpike road company authorized to. use the whole power of the state of Kentucky to assess a tax upon individual citizens and upon corporations hás proceeded for some 15 or 18 years to collect the taxes due from those persons, but has never performed the object for which the statute authorized it to collect the taxation, viz., the building and completion of the turnpike road, that was supposed to be built for the benefit of that community. They have been called upon year after,year to pay'the tax, but they have gotten no benefit from it. The money has been kept by the turnpike- road company, or somebody else. * * * This*576 las gone on now until they have accumulated something like $10,000 more than would be necessary, according to the testimony, to complete the turnpike road. Now, under these circumstances, should the court permit it to go on indefinitely?”
If the evidence contained in the record and upon which the learned trial judge acted is not true, the turnpike company should have met it by denial and proof, not by admission. Presumably the turnpike company either knew or had the means of ascertaining all the facts; apd in the absence of explanation the facts disclosed by the other side must for the purposes of this appeal be accepted as true. In testing the effect of such evidence, it is to be observed "that, although the turnpike company’s corporate powers respecting the authorized road included the right of maintenance (section 1 of the act), yet its right to secure aid through taxation was expressly limited to the cost of construction (section 12). True, “construction” was to include cost of rights of way; but, as we have seen, the road was to be located as far as practicable along an existing county roa'd. The entire turnpike road is open and traveled and is partly macadamized^ but it is not suggested that anything whatever was expended for rights of way. Why then on the present showing was not the right to'tax exhausted? The statute was special, and the object designed to be accomplished by it was special. It is too plain for argument that power thus bestowed and restricted cannot be exercised beyond the reasonable cost of the thing specified. If illustration of this were necessary, it might be found in Board of Education of City of Newport v. Nelson, Mayor, 109 Ky. 203, 208, 209, 58 S. W. 700, 702, where the court approved language of the Circuit Judge:
“While the school board is authorized to demaiid and receive from the city a sum equal to 35 cents on ehch $100 of taxable property, yet the right is not an arbitrary one, and must arise out of the necessities of the case. No more may be demanded than is reasonably necessary, nor must the estimate be extravagant.”
It is not perceived why the principle of such a restriction is not the equivalent of an express limitation to a distinct amount, for reasonable cost is open to definite ascertainment; and plainly definite limitation cannot be exceeded. Corbett v. City of Portland, 31 Or. 407, 418, 48 Pac. 428, and citations; Cummings v. Fitch, 40 Ohio St. 56, 61; Dumphy v. Supervisors of Humboldt County, 58 Iowa, 273, 276, 12 N. W. 306; State ex rel. Dillon v. County Court, 60 W. Va. 339, 348, 349, 55 S. E. 382.
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The other questions presented have been considered; but, in view of what has been said, they,do not require discussion. We have passed by the averment and contention of appellee that the tax provision of the special act has been repealed, because the question may not arise in the further progress of the case.
The order is affirmed, with costs, and the cause remanded for further proceedings.
“See. 12. Tliat in order to enable said company to build their said turnpike road as speedily as possible * * * there is hereby levied on all and every species of property * * * including therein all railway company or. companies property situate within the bounds of the taxing district herein created, subject to taxation for state revenue purposes * * * the sum of fifty cents upon each one hundred dollars worth of taxable property * * * , each year, commencing with the year of one thousand' eight hundred and ninety-one, and continuing until said road is built and paid for; the tax herein levied * * * shall be expended solely in the location, building and construction of the road, including therein the sums required and necessarily expended by the company in procuring rights of way and other proper expenses incurred by the company in so doing, and in building the road.”
The taxing district so created fembraeed all property “situate within said termini and a line parallel with the Ohio river and within two miles of said river.”