71 Ky. 300 | Ky. Ct. App. | 1871
Lead Opinion
delivered the opinion oe the court, Judge Hardin dissenting.
These two appeals were not heard together; but inasmuch as they involve substantially the same questions of fact, and must of necessity be settled by the application to each of the same principles of law, they will for convenience be considered together, and one opinion made to apply to both cases.
The ninth section of an act approved March 1, 1865, entitled “An act to incorporate the Kentucky River Navigation Company,” provides “that the county courts of the several counties bordering on the Kentucky River, or interested in its navigation, may on the application of the corporation named in the first section, or of the directors -of said company after its organization, a majority of all the justices of the peace' being present, subscribe stock in said company, and levy a tax on all taxable property of said county sufficient to pay the whole amount of said subscription in three years from the time it was made, which tax shall be collected in all respects as taxes for state revenue are now collected.”
Application was made to the Mercer County Court for a
“At a county court held for Mercer County at the courthouse at Harrodsburg, on Monday, the 2d day of September, 1867, present Chr. Chinn, presiding judge....... (and thirteen justices), an application being made by the Kentucky Biver Navigation Company to the court to subscribe stock to said company, and the same having been duly considered, and all the members of the court present save one are of opinion that it is the interest of this county that stock should be subscribed by them in-said company, and seven of the members present declared in favor of and voted for the following order, viz.: It' is ordered that the sum of ' seventy-five thousand (dollars) be directed to be subs'cribed, upon the conditions hereinafter named, as stock by this court in behalf of the county of Mercer in said company, payable in three equal installments, and that a levy be made in due time therefor, so that the first installment shall be collected and paid to said company in the year 1868. And Dr. Joseph A. Thompson is hereby appointed a commisioner to subscribe seven hundred and fifty shares of one hundred dollars each in stock in the Kentucky Biver Navigation Company, as above stated. But said commissioner is directed not to subscribe said stock, or any part thereof, until said company shall, by proper orders entered on the books, agree that no part of their subscription shall be mortgaged under the provisions of the tenth section of the act of the Kentucky Legislature incorporating said company, nor shall the county of Mercer be in any manner bound for the subscription herein decreed to be made until said company has accepted it upon the conditions herein set forth.”
Afterward) on the 18th of March, 1868, at a county court held by the presiding judge alone, a paper, purporting to be an order of the president and board of directors for the Navi
The commissioner, Thompson, having determined that the resolution of the president and directors of the company was a compliance with the conditions imposed by the order of the county court under which he claimed authority to act, entered upon the books of the company a subscription of seven hundred and fifty shares of stock for and on behalf of the county of Mercer. Under this state of affairs a motion made by the Navigation Company to the effect that the county court should levy the necessary tax to pay the first annual installment due on account of this supposed subscription was overruled, and upon application therefor the circuit court awarded a writ of mandamus compelling the justices to levy such tax. This judgment can not be sustained unless the action of the county court, together with that of the com-' missioner, amounts in estimation of law to a complete and binding contract of subscription.
The act of the General Assembly incorporating the company imposed no obligation upon the County Court of Mercer to take any part of the proposed capital stock of the company. As to each one of the counties embraced by that charter, it was at most but an enabling act. Authority was conferred upon the various county courts, a majority of the justices of their respective counties being present, to do or not to do a certain act, and prescribing the consequences in case such contemplated act should be done. Such a statute has no “mandatory effect requiring immediate obedience, except so far as it regulates the time and manner of doing the [discretionary] act, and expressly or impliedly commands that the agent shall not be prevented from doing it according to the discretion allowed.” (Slack v. Lexington and Maysville Railroad Company, 13 B. Monroe, 1.)
The act incorporating the Navigation Company delegated to the county courts of certain counties the power to determine whether or not the counties represented by those bodies should or should not become stockholders in the capital stock of the company. The functions of these courts under this act were in some measure legislative, inasmuch as upon their action was made to depend whether or not this provision of the act of incorporation, otherwise conditional, should as to the constituents respectively represented by them become absolute. To these bodies was committed the delicate and responsible duty of determining a question of taxation. In the discretion and integrity of the justices composing these courts the General Assembly reposed a high degree of confidence and trust, and clearly indicated that the persons possessing this confidence were expected and required, in the discharge of the delicate duty imposed upon them, to act in person, and not by or through a subagent or commissioner. While acting together as a county court, they were authorized for and on behalf of their respective counties to subscribe to the capital stock of the Navigation Company. County courts, under the law, act and can act only through their orders made of record.
The law pointed out the mode by which these agents should have exercised their delegated powers, and the rule of procedure thus prescribed such agents could not disregard without rendering their action void. (Sedgwick’s Statutory and Constitutional Law, 385; Agent State Prison v. Lathrop, 1 Michigan, 438; Hydes & Goose v. Joyes, 4 Bush, 464.)
The agent, Thompson, was appointed without authority of law, and his acts can not bind the tax-payers of Mercer County. Unless the orders of the county court made of record, when a majority of the justices were present, amount of and within themselves, disconnected from any act done out of court by any one, or in court and not of record, to a perfect and complete subscription of stock, the award of. the mandamus was erroneous. The action of the commissioner in entering in the books of the company the contract of subscriptions can have no greater effect than if he had merely attached to such books copies of the orders of the court. Those orders constitute the only basis of obligation upon the part of the court or of the county, and the only foundation for any remedy for their enforcement. (Justices Clark County v. Paris, Winchester & Kentucky River Turnpike Company, 11 B. Monroe, 146.)
The order made at the only term at which a majority of the justices were present goes no further than to direct that in the
The order when legally constimed is nothing more than a proposal to subscribe the amount of stock named .upon the conditions fixed. Its acceptance may have imposed a moral obligation upon the justices participating in making it to carry out in good faith their agreement to subscribe; but if they can be proceeded against for the violation of such agreement by writ of mandamus (a legal proposition which will scarcely be insisted upon), it must be to compel them to make the subscription, and not to levy a tax to pay a subscription which thus far, acting as a county court, they have not made. The company did not understand the order in question as anything more than a mere proposition upon the part of the county court, and in their resolution accepting the conditions annexed to the proposal it is termed “ an order of the County Court of Mercer County, made at the September court, 1867, proposing to subscribe to the capital stock of this company ; ” and they rely for the relief sought not upon the order alone, but upon the subscription made in pursuance thereto by the commissioner, Thompson.
If the acts of Thompson had been reported to and approved by the county court when properly constituted, and the order
The action of the Garrard County Court, althoúgh substantially the same with that of Mercer, is evidenced by an order more definite in its character, and which upon a casual inspection might be regarded as containing the essence and substance of a subscription of stock to the amount of one hundred thousand dollars, independent of any future action by the court itself, or by any other agency. The order recites the fact that an application for a subscription of stock had been made by the company and duly considered by the court (a majority of the justices being present), and it is ordered and adjudged that the “ sum of one hundred thousand dollars shall be subscribed on the part of Garrard County to the capital stock of the Kentucky River Navigation Company; and William H. Wherritt is hereby appointed the agent of the court, and is directed to subscribe one thousand shares of stock of one hundred dollars each on the books of said company, payable in three annual installments, and report his acts to this court. This subscription is made upon the contingency that the said company obtain subscriptions of stock sufficient to extend slack-water navigation above or to the mouth of Paint Lick Creek, the boundary line of Garrard County, including the aforesaid subscription.”
In the order the term “this subscription” is once used, and it concludes by speaking of the “ aforesaid subscription,” both of which expressions, would seem to indicate that the order
Again, instead of stating in the order that the court thereby subscribed the amount of stock named, which would have evidenced a perfect and enforceable obligation imposed by the court upon itself, a commissioner was appointed, who was directed, out of court and at some future time, to make the subscription for and on behalf of the court; and when he should have performed this duty to report his action in the matter back to his principal.
Carefully considered, this order amounts to no more than an offer or pledge to subscribe stock, if it is even susceptible of that construction. It evidences the fact that the county court, after due consideration, had arrived at the conclusion that it was to the interest of Garrard County that the subscription should be made, and that it had determined to take such action, and therefore that a power of attorney was given to its commissioner authorizing him to carry such determination into effect. This conclusion is fortified by the fact that the order is so interpreted by the officers and attorneys of the Navigation Company.
In the petition for the mandamus it is alleged that the County Court of Garrard County, “by proper and legal orders then made, ordered and adjudged that the sum of one hundred thousand dollars should be subscribed on the part of Garrard County to the capital stock of the Kentucky Biver Navigation Company; and further ordered that William Wherritt be appointed agent of the court, and directed to subscribe one thousand shares of stoclc ... on the books of said company ;” and further, that “ said Wherritt, agent as aforesaid,
Nor reasons already given the acts of Wherritt must be regarded as of no binding effect; and as he made no report of liis acts to the county court, and as his attempted subscription was neither approved nor ratified by that. body, the rights of the parties litigant must be determined by the legal effect of the order under which he claimed authority to act. This order a majority of this court regards as wholly insufficient to establish, in and of itself, a contract of subscription absolute and complete. In the absence of such an obligation upon the part of the court, the circuit judge should not have awarded the mandamus compelling the levy of the proposed tax.
These conclusions render it unnecessary that we should consider and decide the constitutional questions presented by counsel in the argument of the two appeals. Wherefore the members of the court concurring herein forbear to express an opinion as to the constitutionality of the tax authorized to be imposed by the ninth section of the act incorporating the Navigation Company.
Nor the reasons indicated it is considered that the judgments in the two causes under consideration be reversed, and that they be remanded with instructions in each case to dismiss the petitions of the appellee.
Dissenting Opinion
delivered the following as his dissenting OPINION, ADHERING TO THE OPINION FIRST DELIVERED BY HIM.
A careful consideration of the petition for a rehearing in each of these causes has rather confirmed than shaken my confidence in the conclusions expressed in the former opinions delivered by me, as the unanimous decisions of this court as
I therefore adhere to the former opinions of this court, as still expressive of my own views, without any alteration whatever.
first opinion, delivered December 15,1870, TO WHICH HE STILL ADHERES AS HIS DISSENTING OPINION, READS AS FOLLOWS.
The Kentucky River Navigation Company was incorporated by the Legislature of Kentucky, March 1, 1865; its business, as declared in the act of incorporation, being “the improvement of the navigation of the Kentucky River and its tributaries by building additional locks and dams.” The capital stock of the company was required to be one million five hundred thousand dollars; but it was authorized to organize and proceed to business as soon as a subscription of two hundred thousand dollars should have been obtained. Among other powers conferred by the charter, the corporation was authorized to establish tolls for the transportation of persons and property over the Kentucky River and its tribu
And the ninth section of the charter provides “that the county courts of the several counties bordering upon the Kentucky River, or interested in its navigation, may, on the application of the corporation named in the first section, or
The other provisions of the charter, as well as the subsequent acts of the legislature referred to in the argument, not being essential to the questions which'will be considered in this opinion, need not be stated.
In September, 1865, the Jessamine County Court ordered that a subscription of thirty-five thousand dollars be made on the books of the company, and in November following the further sum of sixty-five thousand dollars, as capital stock, which was done by an agent appointed for that purpose; and in September, 1867, the Mercer County Court in like manner ordered a subscription of seventy-five thousand dollars of stock to be made, which was done. In April, 1867, the County Court of Garrard County ordered that a subscription of one hundred thousand dollars of said capital stock be made by an agent, with a condition annexed, in effect, that enough money should be subscribed to extend the improvement by slackwater in the Kentucky Fiver to the mouth of Paint Lick on the north-eastern border of Garrard County; and this subscription appears to have been made. The county courts of Franklin, Woodford, Madison, Fayette, Clark, Owsley, and Estill counties, which, as well as Jessamine, Mercer, and Garrard, border on the Kentucky Biver, and also the municipal corporation of the city of Louisville, subscribed for large sums of the capital stock of the company, and a few thousand dollars more were subscribed by individual persons, besides the sum of one hundred thousand dollars by Bissett & McMahon, who after the organization
At the January term of the Garrard County Court a motion of the president of the Kentucky River Navigation Company that a levy be made to pay the first installment of said subscription of that court of one hundred thousand dollars was heard, and the court thereupon refused to make the levy. And afterward, at the April term, 1870, of the Garrard Circuit Court, the corporation, on its petition filed in that court, and notice to the members of the county court, moved the circuit court to award it the writ of mandamus to .compel the county court .to make the levy, which it had refused to do.
The motion was resisted on several grounds, both of law and fact, set forth in a demurrer to the petition, and an answer filed by the county court; all of which were adjudged insufficient upon a hearing of the cause, and the court awarded the mandamus against the county court, commanding it to levy and collect upon all the taxable property of Garrard County the sum of $33,333.33J, to pay the first installment of said subscription of stock; and the county court seeks the reversal of that judgment by this appeal.
By the defense in the court below, as well as in the argument for the appellant in this court, the power of the circuit court to coerce the levy by the county court has been questioned with reference to the sufficiency and regularity of the organization of the corporation, and its consequent right to accept the subscription of stock, and the validity of the action of the county court to create a_ binding obligation on the county, subject to enforcement by that court, as a ministerial act; and also with reference to the validity of the act of incorporation as a delegation of the power of taxation to the county court, either to subserve a general purpose of the
Deference for the action of the legislative branch of the government, not less than a just and proper appreciation of the great' importance and magnitude of the enterprise involved, would lead us, if we could with propriety and consistently with official duty, to determine this cause by the solution of some one or more of the minor and less important questions presented, leaving undecided the graver ones directly affecting the constitutional validity of the charter. But the nature of the controversy is such as to call for a decision on the fundamental grounds of the defense relied on in the court below; and we do not feel at liberty to go round a plain duty merely because the task of discharging it is an unwelcome and an undesirable one to us.
It has been argued that, as the act of incorporation involved a leasing to the company of the public works on the Kentucky River, which had been dedicated to the use of the sinking fund, it was in violation of the thirty-fourth section of the second article of the state constitution, as operating to diminish the resources of that fund; and also that it violated the thirty-sixth section of the same article in providing for the creation of a debt on behalf of the commonwealth without a submission of the proposition to the vote of the people; and still another objection is that the act provided for the appropriation of money or the creation of a debt exceeding one hundred dollars, and was not, on its final passage, voted for “by a majority of all the members then elected to each branch of the General Assembly, and the yeas and'nays thereon entered on the journal,” as required by the fortieth section of the same article of the constitution.
The power of taxation is certainly an inherent right of sovereignty, and indispensable to the very existence of government ; but another great fundamental principle is equally true, that the constitutional guaranty of protection of property is not only the citizen’s security against spoliation, though attempted under the guise of taxation, but also against the imposition of unequal and undue assessments on the part of the government. And while it is undeniably true that the legislature, as the general depository of power, subject to the limitations of the constitution, may provide for raising public revenue, and prescribe the objects to be provided for or aided by its expenditure, and may also, for particular local objects and purposes, delegate the taxing power to the authorities of counties or other municipal subdivisions of the state, the power of imposing the burden of taxation, whether exercised in the one way or the other, is still limited by the two important conservative principles of security against its own perversion and abuse and equality as far as practicable in the imposition of the burden.
The Kentucky River being by legislative recognition and in fact a navigable stream, for the improvement of which the state had expended vast sums of money by successive appropriations since the year 1801, with a view to its general use as a medium of intercommunication and commerce, and in
But we propose to examine the question of constitutional authority to make the assessment with reference to the local benefits which it is supposed would result from it to the community taxed, and which certainly constitute the most plausible grounds relied on for sustaining the judgment of the circuit court; fully recognizing, as we do, the principle as authoritatively settled by numerous decisions of this court, that the legislature can delegate to the authorities of any organized' community in the state the power of taxation for local purposes ; and, acting within its proper sphere, the county court is a competent agency for levying the tax.
As was intimated by this court in the case of Cheany v. Hooser (9 B. Monroe, 344), and also in the City of Covington v. Southgate's heirs (15 B. Monroe, 491), it is often a delicate and difficult j udicial question to determine what may be the precise limit of the power of local 'taxation; but we perceive no valid objection to the rule as stated in the recent decision of the Supreme Court of Michigan, in the case of The People v. Township Board of Salem, that “ if the tax is imposed upon one of the municipal subdivisions of the state only, the purpose must not only be a public purpose as regards the people of that subdivision, but it must also be local; that is to say, the
Testing the essential question in this case by the foregoing rule, it is difficult to see how the advantages to be attained by slackwater navigation on the border of Garrard County can bo brought within the range of local objects and benefits of such peculiar and common interest to the community as to render them proper objects to be accomplished by local taxation. It is not every private or even every public convenience, nor every facility for particular classes of business, industry, or enterprise, however valuable to those who may seek to profit by it, that is of general and peculiar benefit to a whole community; on the contrary, it not unfrequently happens that in the incessant struggle for wealth and financial ascendency going on in a prosperous country the greatest advantages to some classes are correspondingly detrimental to others, who from their very weakness deserve especially the protection of the government. The merchant and the banker, the manufacturer and distiller, may each represent large and valuable interests, and in their own prosperity incidentally benefit others; but who can say that to establish or sustain them in their respective pursuits at public expense would not be a flagrant exercise of arbitrary poAver, and why should any particular class who might seek to profit by the advantages of navigation and commerce be more favored by the government?
The underlying principle of taxation, and, as Ai-e conceive, the only safo and maintainable ground for upholding it, either for general or local purposes, is compensation in some form resulting from it to those who may be compelled to bear its burdens. "Women and children and others unfitted for successful business pursuits, but OAvning the means necessary for
All thoughtful and law-abiding members of an organized local community will readily recognize the justice of enforced contributions, equally and fairly exacted, not only for the support of their local government, but for the promotion of the common purposes of communication, health, and public safety, and commerce necessary for the public good, and in which that community in its organized form has an especial and peculiar interest, for each individual is presumed to be compensated for the tax he may pay by his share of the common benefits secured. But it is difficult to perceive how this can be so with reference to the establishment of an ordinary private corporation, however great may be its influence for enhancing the property of the wealthy, or stimulating or promoting any particular private business or pursuit.
¥e are aware that these views may seem, at first blush, to militate against some of the principles of the decisions of this court in the cases of Talbott v. Dent (9 B. Monroe, 526), and of Slack v. Maysville and Lexington Railroad Company (13 B. Monroe, 1), and subsequent cases involving the power of local taxation in aid of railroad companies. But an examination of those cases will show that a controlling consideration for treating railroads as proper objects for local taxation is that, partaking as they do of the nature of public highways leading to or through a county or city, they most efficiently subserve the purposes of a road for access, travel, and trans
We have failed to observe in either of the adjudged cases referred to such analogy to this as to entitle them to the influence of controlling precedents in this case. In one aspect it is conceded the proposed improvement of the Kentucky River might differ from the ordinary objects of private enterprise in its effects on the local interests of the people of Garrard County j it would inure to their convenience for the purposes of travel and transportation by water. But we can not regard this, in a constitutional sense, as a commensurable and adequate compensation to the whole people of that county, as a local community, for the imposition upon their property of the proposed tax of one hundred thousand dollars.
The increased advantages for traveling by water resulting from the improvement of the river forming one of the -lines of that county, which is rendered inaccessible for ordinary purposes, except at a few points, by the natural cliffs and banks of the river, can not, we think, in any proper sense, be considered as equivalent to the ordinary facilities of traveling by convenient roads, rendering all parts of the county accessible' to the people, in their own chosen modes of conveyance, for purposes of pleasure, or religious worship, or public or private business.
Navigable rivers, it is true, are a species of public highway, and often of great value to the public both as thoroughfares of travel and channels for commerce; and in. these we admit their analogy, in some respects, to railroads. But that analogy rather exists with reference to certain objects of general commercial interest than the peculiar local benefits which in this and other states have been recognized as constituting the trite basis of municipal taxation in aid of railroad corporations.
There is another reason indicating an important distinction between the improvement of navigable rivers and the constructing of railroads by private corporations for public use, and which seems to illustrate the principle that generally the former kind of improvement is not an appropriate object for local taxation. Unlike railways and other merely artificial means of travel and transportation created by private enterprise, navigable rivers belong to the people in general as public highways, and must continue to be so, however improved; and, being subservient to commerce, have by the well-settled doctrine of English common law been considered as things of common right. (Angelí on Water-courses, 201.) Being the property of the state for the use of all her citizens, why should they for the purpose of improving them be made the objects of discriminating or unequal assessments on account of mere incidental benefits resulting from jiroximity to them, any more than the public buildings and other property of the state which may, under peculiar circumstances, be more beneficial to some classes of the people than to others?
The additions and improvements now being made by the state to her capital buildings, rendering the city of Frankfort more attractive, and furnishing an increased assurance of the continuance of the scat of government in it, and thus
Whether or not the legislature may constitutionally provide by general taxation for the improvement of the Kentucky or any other navigable river of the state is an ulterior question, on which we have not intended to express any opinion in this case, nor would we be understood as deciding that the advantages of slackwator navigation to a local .community may not, under any circumstances, be such as to make them proper objects for municipal taxation, especially if the tax be imposed by the vote of the people to be taxed.
It has been argued, notwithstanding the general interest of the state in the improvement of the Kentucky River, that the proposed improvements would especially promote the interests of the people of the adjacent counties by increasing the value of their lands, and furnishing facilities for trade and lucrative employment; but that may be equally true with reference to many large manufacturing establishments, owned by corporations or individuals, which incidentally enhance the value of contiguous property, and afford employment for some persons and a convenient market for others. And as in either case it is obvious that only particular classes of persons in a community can be materially benefited, it logically results that to foster either enterprise by local taxation would make the appropriation of private property to public use without just compensation, or, what is worse, taking the property of one class of the people and giving it to another.
WThile we recognize the decisions of this court to which we have referred as authoritatively settling the questions they involve with reference to railroads as objects to be attained by the aid of municipal taxation, we do not feel authorized
There is yet another aspect of this case which presents a grave, if not an insurmountable, cause of objection to the validity of the taxing power sought to be enforced. The act of incorporation does not stop with providing for local assessments for extending slackwater navigation along the borders of the counties to be affected by building the additional locks and dams contemplated; but it goes further, and operates, in effect, to impose on the people of those counties contributive responsibility to the state for an annual rent of two thousand five hundred dollars a year for the public works already constructed and in operation on the river for a term of fifty years. If it should be conceded, for the sake of the argument, that the tax can be upheld on the ground of its local benefits to the extent of the proposed additional works, it is difficult to discover any maintainable ground for coercing the local communities concerned to become parties to this legislative contract between the corporation and the state. To admit the power of a county court or other municipal authority, with or without legislative sanction, to assess private property in aid of any scheme or enterprise instituted by a private coloration or any individual, not the subject of peculiar local interest to the people to be burdened, would involve the surrender of the great principles that the right of property is before and higher than even any constitutional sanction, and that no civil government is entitled, in ordinary cases and as a general rule, to regulate the use of property in the hands of its owners.
It may be said, however, that although the county court could not bind the people of the county as a contracting party with the state, that fact did not vitiate the subscription of stock for the other purposes contemplated by the act of incorporation. But while it is a rule of law that if a statute attempts to accomplish two or more objects, and is void as to one, it may still be valid as to the others; yet if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portion. “And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently, then if some parts are unconstitutional all the provisions which are thus dependent, conditioned, or connected must fall with them.” (Cooley’s Constitutional Limitations, 178.)
But whatever might be the effect of the contract with the' state on the validity of the subscription of stock by the county court, we are satisfied, for the other reasons already sufficiently indicated, that the subscription was unauthorized, and consequently the judgment awarding the mandamus is erroneous.
