117 Ky. 275 | Ky. Ct. App. | 1904
Opinion op the court by
Reversing.
The opinion heretofore rendered in the first of these cases, (see Yanceburg, etc., Turnpike Co. v. Maysville, etc., R. Co., 25 R., 1404, 68 S. W., 749) was withdrawn, and a reargument1 ordered. On the reargument the second case was, by consent of parties, heard with the first case, in order that the court might get more fully before it all the facts in the controversy; and we will now dispose of the two cases together.
The turnpike company was incorporated by an act of the Legislature approved April 24, 1890. See acts 1889-90, vol. 2, p. 1385, c. 1034. By its charter appellant was authorized to construct and operate a turnpike commencing at the west end of the bridge across Salt Lick creek, thence down the Ohio river bottom, the best and most practicable route to Stout’s Lane; following, so far as convenient, the existing county road. In order to enable the company to build the turnpike as speedily as possible, and equalize the burden thereof, there was levied by the act on all species of property, including that of railways situate within the bounds of a certain taxing district, subject to taxation for State
Under this order, assessments were made for the years 1895, 1896, 1897, 1898, and 1899 by the county assessor. His assessments were submitted to the county board of equalization, and were by it approved. No assessment appears to have been made of the property of the individual taxpayers for any year previous to 1895, except those made by the appointees of the turnpike company as provided in its
The opinion heretofore rendered on the former appeal is conclusive upon the parties, and the validity of the charter provision as to the assessment of the property by the appointees of the company can not now be reconsidered. The assessment of the property of the individual taxpayers by the appointees of the company has. been determined to be void. Being void, it conferred no right upon the sheriff to collect taxes thereunder, and was.no bar to an assessment of the property by the county assessor, for, as it was void, the property had not, in law, been assessed at all, and, not having been assessed, the case stood simply as an omission by the county assessor, to make an assessment which he ought to have made. The fact that the assessor, in making this list, did not again call on the taxpayers, does not invalidate the assessment. They were called. on for the list of their property in each year when the county assessmment was made, and they
It is insisted for appellees that they can not be taxed, by reason of section 4736, Ky. St., 1903, because their prop? erty lies in two districts. By that section it is provided that whenever in any county there is in force a system of taxation for turnpike purposes under which part of such taxes are general, and part thereof levied in turnpike road districts, then, when the same property is situated in more than one of such districts, the property shall be liable for only one district tax, which shall be that levied in the district in which is the turnpike from which the property or it^ owner derives the greater benefit, and this shall be determined by the fiscal court or board of county commissioners, and its judgment shall be 'final. It is not averred that any such decision has been made by the fiscal court. By the charter of appellant, the tax is levied by the Legislature on all the property in the taxing district; and, if any taxpayer seeks exoneration from it he must apply to the fiscal court or county commissioners and obtain its judgment exempting him. Until this is done, the sheriff may go on and collect the tax, as prima facie, under the act, all property within the taxing district is subject thereto.
The turnpike company, when the collection of taxes was suspended, finding itself unable to complete its road, adopted on March 18, 1S97, the following: “It was moved and adopted by a unanimous vote of all the directors of the company that the portion of the road now completed and graded be leased to Lewis county as and for a county road until such time as the company is in a financial condition to finish the road and properly take care of and maintain the samé under its charter; the company reserving the right under
After the turnpike company was organized, and had laid out its pike, and constructed one mile of it, it became apparent to the directors that it was necessary to get enough of the road constructed as soon as possible to erect a lollgate and collect toll, so as to keep it in repair. The officers of the company to this end borrowed money in their own name and individually, which they used in grading the road and in get
“Provided, that the company shall not be permitted to issue any bonds or other written obligations of indebtedness, nor to make any contract or contracts for' constructing the roads or any portion thereof until the taxes collected, with the stock subscriptions and the aid given by the county as hereinafter shown and provided for, shall be sufficient to meet and pay for said contract or contracts of construction of the road so let, et cetera.” The words: “aid given by the ¡county as hereinafter shown and provided for” refer to a following section of the charter, by which the Lewis county ‘court was authorized to subscribe the sum of $1,000 per mile to the capital stock of the turnpike road company for each mile of the road constructed and ready for travel by the ‘public until the entire road was finished and completed, whenever the resources of the company were sufficient, with the aid of the subscription, to enable the company to construct its road one mile or more. The length of the road *was about 6 1-2 miles. At the time the officers borrowed the money referred to, the stock subscriptions of the company amounted to $1,050, and little taxes had been collected. It is insisted for appellees that the borrowing of this money was forbidden by the charter, and that the taxes sued for are- sought to be collected to pay off the debts thus in-burred, and not for the purpose of completing the road. We fail to see that there is any force in this position. If the directors of the company created a debt they had no power to create, this is no reason why they should not go on and complete .the road and pay for it as required by law. It is no defense for the taxpayer to say, when called on for the payment of taxes which were levied by the act of Legislature until the road was constructed and paid for, that, the board of directors*286 had created a debt they ought not to have created. It is not alleged that the road has been constructed and paid for, and it is therefore unnecessary now to consider whether the company made a contract for the construction of its road, or any part thereof, when the taxes collected, with the stock subscriptions and the aid given by the county court, as therein provided were insufficient to meet such contract, or what would be the rights of the parties of the turnpike company on receiving the benefit of the contract, and having the money to pay, should voluntarily pay for the benefit received, These questions are not presented by the record, and are 'not passed on. We only decide that the borrowing of the money by the directors individually, and the spending of it in the construction of the pike, is no defense to the taxpayer*, when sued for the taxes levied for the building of 'the pike. When he pays his taxes, he will then be a stockholder in the company; and, if the money of the company is misappropriated, he may then complain. The proof fails to show that the company is not in good faith attempting to carry out its charter, and to collect the taxes for the purpose of constructing and paying for. the road as therein provided.
In the suit to collect the railroad tax, the 'turnpike company set up the assessment of the property for each year both by commissioners, as provided in its charter, and by the Railroad Commission, as provided by the Kentucky Statutes; alleging that it was not advised as to which was the proper method of assessment,-and praying the court to determine and enter judgment accordingly. On motion of the defendants, the court •requii’ed the plaintiff to elect which assessment it would rely upon. The plaintiff excepted, and, under protest, elected fo rely on the assessment made under the charter. On final hearing, the court gave judgment in
The judgment in each case appealed from is therefore
Petition for re-hearing overruled.