112 Ky. 252 | Ky. Ct. App. | 1901
Opinion of the court by
Reversing.
This case involves questions similar to those had under consideration by the court in Whaley v. Com., 110 Ky., 154; 23 R., 1292; 61 S. W., 35. The main point of difference is (if it is a point of difference) that the taxpayer who essays to sue for all the taxpayers of Fleming county, to recover the illegal tax levied and collected of them all, is not a resident of Fleming county. He, however, owns land in Fleming county, which .was assessed for a portion of the illegal tax, and paid his proportion of it. It is argued that he is not a fair representative of the class of taxpayers whom he assumes to represent, and that his interests are not identical with those who are resident in Fleming county; that, therefore, he did not have the right to sue for himself and all others in, this
Although this court has heretofore had before it, and ha», apparently, determined the question presented, in other actions than the Whaley case, a reconsideration of the principle of law involved has been so earnestly pressed upon us in the able arguments with which we have been favored at bar that we have concluded to re-examine the question, the reasons underlying it, and the authorities upon which it is based. And, for the purposes of this opinion, we will ignore the fact of the decision in the Whaley case.
Text writers and courts have had frequent occasion to analyze the character of proceeding here involved, and have, with general unanimity, brought it within that ancient rule of equity that its jurisdiction exists in order to prevent a multiplicity of suits concerning the same subject-matter, as affecting the same litigants or the same title. They find that the subject-matter is the tax levy, or, when collected, the fund arising from such levy. He who lias collected or who holds it, or who is asserting- the lawful right to collect it, is one of the necessary parties to the controversy; and, when collected, the fund is called and treated as a trust fund, the beneficiaries of which are all who contributed to it. They, consequently, are the other necessary party to the litigation for its recovery. Thus, in chis -State, in Blair v. Turnpike Co., 4 Bush, 157, it was expressly held that the “sheriff of Nicholas county holds
In section 2fi9 the learned author says: “The jurisdiction, based upon the prevention of a multiplicity of suits, has long been extended to other cases of the third and fourth classes, which are' not technically ‘bills of peace,’ but ‘are analogous to,’ or ‘within the principle of,’ such bids. Under the greatest diversity of circumstances, and the greatest variety of claims arising from unauthorized public acts, private tortious acts, invasion of property rights, violation of contract obligations, and notwithstanding the positive denials by some American courts, the weight of authority is simply overwhelming that the jurisdiction may and should be exercised either on behalf of a numerous body of separate claimants against a single party, or on behalf of a single party against such a numerous body, although there is no ‘common title’ nor ‘community of right’ or of ‘interest in the subject-matter,’ among these individuals, but where there is, and because there is, merely a community of interest among them in the questions of law and fact in
Judge Cooley, in his work on Taxation (page 769), says: “When the supposed illegality in a tax proceeding affects a single person only, or affects him in a peculiar manner, distinguishing his case from that of others, he can not. unite with others in a suit to restrain such proceeding. A joint bill by two or more parties, setting out distinct grounds on which each sought relief, would be dismissed as multifarious. But where the illegality extends to the whole assessment, or where it affects in the same manner a number of persons, so that the question involved can be presented without confusion by one bill filed by all or any number of those thus affected, there seems to be no sufficient reason why a joint bill should not be permitted. The reasons favoring it are that it avoids the necessity of a multiplicity of suits, and the attendant trouble and expense; and the objection that the interests of complainants are several is sufficiently met by the fact that complete justice may be done to all in one suit on the single issue, whereas, if the parties did not join, the same issue must be passed upon in separate suits brought by the several complainants. Although there lias been some hesitation in 'sanctioning such bills, the weight of authority is decidedly in favor of supporting them, and this method of redress is mow most commonly resorted to where the case is appropriate for it:”
As supporting those texts, we find the opinions of the courts of last resort of at least twenty-two States of the Union, with practically none opposed; also many federal
I-n our opinion, the fact that appellant Wiggins, the suing taxpayer, was not a resident of Fleming county, in no wise affected either his own legal right to recover taxes unlawfully assessed against his property in that county, and collected from him; nor does the question of where one of numerous cestuis que trusteni resides affect his legal rights, or right or form of action for the trust fund in which he is‘interested. Of course, if he were paid off his part of the tax claimed, he would no longer be a representative of the taxpayers who had mot been repaid the sums illegially collected from them, though, if he were dismissed, the actioji -would ranain for the benefit of others affected, if they saw proper to avail themselves-' of it.
From the foregoing it necessarily follows: The -subject-matter of the litigations is the trust fund, the amount of which determines the question of jurisdiction. The parties plaintiff are those taxpayers who contributed t-o that fund. The court may, by reasonable requirement, regulate their number so as to do justice to all interests, and may, and, if no others offer as plaintiffs, should, allow one to sue for all. The -motion to dismiss the appeal is consequently denied. Oswald v. Morris, 92 Ky., 48; 13 R., 355 (17 S. W.. 167), is overruled. Other questions involved are
Judgment reversed, and cause remanded for proceedings not inconsistent herewith. ^