93 Ky. 33 | Ky. Ct. App. | 1892
delivered the opinion of the court.
The appellant alleges in its petition that on the 15th day of April, 1853, pursuant to the authority conferred upon it by the Legislature of this State, approved January 9, 1852, it subscribed $200,000 to the capital stock of the Lexington and Big Sandy Railroad Company, and issued two thousand bonds of the county of $1,000 each, due in-years after date, together with six per centum per annum, payable semi-annually to said company. That the appellant was also empowered by said Act to levy an annual tax on the taxable property, real and personal, of said county, to pay said bonds and interest thereon ; that the appellant, on the 15th day of April, 1883, by the authority of an Act of the Legislature of this State, approved April 8, 1880, refunded one hundred and twenty of those bonds, and issued one hundred and twenty new bonds to the company for $1,000 each, and due ten years after date, bearing 6 per cent, interest, payable semi-annually; that these bonds and interest are unpaid.
That by an Act of the Legislature of this State, approved March 10, 1869, the county of Menefee was formed, and said county, as formed, included a portion
That on the 23d day of February, 1887, the appellant, by order duly entered by its levy court, imposed a tax of thirty cents on each one hundred dollars of taxable property in said county, for the payment of said bonds and the accrued and accruing interest thereon; that thereafter the appellee was duly notified of the action of the appellant in making said levy and the necessity for the same, and was requested to make a like levy upon the taxable property of that part of the appellee that was taken from Montgomery county; but the said levy court refused to make said levy, etc. The appellant asks that the appellee be mandamused to make said levy, etc.
The lower court sustained a general and special demurrer to the petition. It is supposed that the court sustained the general demurrer upon the ground that the action of the Montgomery County Court in refunding and issuing one hundred and twenty new bonds in the place of the old ones, without the appellee being a party
So, in this case, the refunding of the indebtedness and the issual of the new bonds in' payment of it, did not create a new debt, but the evidence of it was merely changed, which change Montgomery county had the right to make without consulting Menefee county, or that part of the territory embraced therein that once belonged to Montgomery county; for, by the Act creating Menefee county, that part of the territory that was taken from Montgomery county was to remain a part of that county for the purpose of being bound for its pro rata of the Montgomery debt and for its payment; but the management and control of the debt, and the provisions for its payment, belonged exclusively to the appellant. And the only power that the appellee possessed,
The action is against “ the Menefee County Court.” Now, it is true that ordinarily an action may he maintained in the name of a county, as was the case in Lawrence County v. Chattaroi Railroad, 81 Ky., 225. But those cases are not like this one. Here, the appellant seeks to compel, by mandamus, the performance of a ministerial duty; and it seems to us that the delinquency complained of is the refusal of the individual officials interested with the performance of that duty to execute it. And such persons should be sued by name, in order that the court might determine whether or not they are the proper persons to perform that duty, and to command them to perform it.
The judgment is affirmed.