Kentucky Union Railroad v. Bourbon County

2 S.W. 687, 85 Ky. 98, 1887 Ky. LEXIS 22

• Court: Court of Appeals of Kentucky
• Decided: January 29, 1887
• Status: Published

Opinions

JUDGE LEWIS

DELIVERED THE OPINION OB THE COURT.

May 9, 1885, the Bourbon county court, composed of tbe presiding judge and a majority of tbe justices of tbe peace, made an order directing tbe sheriff to bold an election at tbe usual voting places in tbat county, to ascertain whether or not a subscription of four thousand shares of stock of one hundred dollars each to the capital stock of the Kentucky Union Railway Company, payable in the bonds of the county, should be made- by the county court for and on behalf of the county, upon the terms and conditions set forth in the order. - In that order is the following provision: “And the sheriff is directed to have such election in the Paris precincts so held as to have the votes of all voters residing in the limits of the city of Paris, as they existed under the act of March 5, 1868, made and received separately from the votes cast by the remainder of the county, it being provided by an act approved March 18, 1876, that no tax should be imposed upon the property of those residing outside said limits, unless the votes of a majority of the voters then residing outside said limits shall be cast in favor of said subscription and tax.” It was further provided that “the vote for subscription shall not be binding upon the citizens and property in that portion of the county embraced in what were the limits of the town of Paris as they existed under the act of March 5, 1868, unless by law the same is also binding upon the citizens and property of the county outside said limits.”

It appears, and is agreed, that at the election held in pursuance of that order, the whole number of votes cast in the county in favor of the subscription of stock was two thousand two hundred and thirteen, and the whole number against it one thousand six hundred and fifty, and that there were cast by voters of the county residing outside the limits of the city of Paris, as they existed under the act of March 5, 1868, in favor of the subscription, one thousand three hundred and five votes, and against it one thousand five hundred and forty-seven. But, nevertheless, the county court, composed of the presiding judge and justices, on June 5, 1885, after first reciting that the returns of the special election held May 23, 1885, had been laid before, examined and considered by the court, and that It appeared a majority of- the votes cast at said •election was in favor of said subscription, and the proposition to subscribe' to the capital stock of the Kentucky Union Railway Company had been duly accepted by a majority of the legal voters of said county, according to the provisions of the charter of said company, made an order that the court then, by Its agent, J. M. Hughes, appointed for the purpose, subscribe the number of shares of stock mentioned in the order of May 9, 1885, and upon the terms and conditions therein contained. And, thereupon, J. M. Hughes as agent, did, in presence of the court, make the subscription, and it was adopted and approved by the court.

This action was instituted June 12, 1885, by J. W. Eerguson and others, residents and tax-payers of Bourbon county, against the Kentucky Union Railway Company, the presiding judge and justices of the peace of Bourbon county, and J. M. Hughes, the county clerk, and in their petition they ask that the company be compelled to surrender the subscription of stock made in the manner mentioned, and the same be adjudged void and of no effect; that the presiding judge be enjoined from executing or delivering said bonds, and the members of the county court from levying or collecting any tax to pay the subscription of stock on the bonds that may be issued. The same relief was asked in the cross-petition of Bourbon county, filed by the presiding judge of the county court. Upon final hearing, it was adjudged by the lower court that the subscription of stock is void and of no effect, and that the county court be enjoined from issuing any bonds, .or levying any tax on account of said subscription of stock; and from that judgment the Kentucky Union Railway Company has appealed to this court.

The authority under which the county court acted in making the subscription of stock complained of, and upon which appellant relies, is section 19 of the act of 1854, incorporating appellant, which is as follows: “It shall be lawful for the county court of. any county * * through which said railway, or its-branches may be located, and they are hereby authorized to subscribe and hold stock in said company upon, the same restrictions as other, stockholders, provided it shall first be submitted to vote of the legal voters of such county * * to be held and taken at such times and places and in such manner as said authorities respectively may appoint, whether or not stock shall be subscribed and taken; and if when the vote be taken it shall appear that a majority of the votes, shall be in favor of such subscription, it shall thereupon be lawful for such county court * * by county court, city or town authorities, by agents by them appointed, to subscribe and take in said company such amounts of stock as they shall determine,, and to issue the bonds of such county, city or town, payable with interest at snch times and places as they may deem proper, and dispose of the same for the payment of snch subscription, and pledge the faith and resources of such county, city or town for the payment of such bonds and interest, and they shall, from time to time, levy and collect such tax, ad valorem, upon all taxable property in their respective jurisdictions as shall be necessary to pay said bonds and installments of interest as the same become due, or to create a sinking fund for the gradual reduction of the same, provided that the rate of interest on the bonds shall not exceed ten per centum per annum. Or the funds to pay for such subscription of stock may be raised by such county court, city or town authorities, by an ad valorem tax on the taxable property in them respective jurisdictions, in such sums or installments as will meet such subscriptions,” etc.

On the other hand, appellees insist that the vote in this case could not have been legally taken in any other manner, nor the subscription of stock made upon any other condition, than are prescribed in an act approved March 18, 1876, which is as .follows: “An act regulating the manner of voting in Bourbon county on questions of tax for subscription to railroad companies.

“Be it enacted, * * that in all votes of subscription and taxation therefor for railroad purposes, hereafter to be made within the county of Bourbon, the' portion of the county outside the limits of the city of Paris, as they existed under the act of March 5, 1868, shall vote ■separately from the portion of the county embraced within said limits ; and no tax shall be imposed for said purpose upon the property of those residing outside said limits, unless the votes of a majority of the voters thus residing outside said limits shall be cast in favor of such subscription and tax.”

It is contended for appellant that act has no application to the vote we are considering, because the question authorized by section 19 of the act of 1854 to be submitted, and which was submitted and voted on, is,, “whether or not stock shall be subscribed,” whereas,, the act of 1876 relates merely to “questions of tax for subscription for railroad purposes ;” and in support of that position, the case of Bullock v. Curry, 2 Met., 171, is cited. There it was held that the submission of the question of subscription merely, though voted for by a majority, was not sufficient to justify the action of the county court in levying the tax, because the statute in that case provided in express terms that, before a subscription could be made or tax levied, the question of levying the tax should be submitted. That case shows what can not be disputed, that there is a distinction between a subscription of stock and levy of tax, and that a vote for the former without authority of law will not justify the latter. It was not, however, there decided that it would have been improper to submit to' the voters the question of subscription as well as that of levying the tax. For every proposition of that kind should contain the terms and conditions of the subscription, and the manner, provided by the act authorizing the vote, in which it is to be.paid. But that case has no bearing on the construction of the act of 1876, which must be determined by its own terms and the purpose of its passage. By it the Legislature, in our opinion, intended to so amend section 19 of the act of 1854, and all other railroad charters applicable to the connty of Bourbon, as that thereafter no subscription of stock should be made in behalf of that connty, nor taxes to pay it imposed upon voters residing outside the limits mentioned, against the will of a majority of them. For “subscription of stock and taxation therefor,” are mentioned in the act connectively, and according to a fair construction, made to depend upon the same condition. It seems to us, if the provisions of the act of 1876 do not apply to appellant’s charter, they are utterly without force or meaning.

But it would not avail even if the operation of the statute was limited to the question of taxation. For there can be no valid and enforceable subscription of stock by the county court on behalf of a county without power to levy and collect taxes to satisfy it, that being the only mode by which it can be paid. And if made in the absence of such power, or in violation of the condition upon which it is delegated, the subscription would be worthless and void.

It then being evident that section 19 of the act of 1854 is, so far as it authorizes a subscription for Bourbon county, without the assent of a majority of voters residing outside the limits indicated, repugnant to the act of 1876, it follows that the subscription in question was made by the county court without authority of law and is void, if the latter act is valid and in force. Whether it is or not, therefore, becomes a vital question in this case, and we will now consider the several grounds upon which it is disputed:

1. It is argued that it violates section 3, article 2, of the Constitution, which declares that “no law enacted by the General Assembly shall relate to more than one subject, and that shall be embraced in the title.”

This court has uniformly held that this provision should receive a reasonable, not a technical construction. And the rule laid down in Phillips v. Covington and Cincinnati Bridge Company, 2 Met., 219, has never been departed from. It is this: uNone of the provisions of a statute should be regarded as unconstitutional when they all relate, directly or. indirectly, to the same subject, have a natural cpnnection, and are not foreign to the subject expressed in the title.” Tested by this rule, we think none of the provisions of the act are liable to the objection made. The subject of the title of the act is, “the manner of voting in Bourbon county on questions of tax for subscription to railroad companies.” There seems to be no objection to the first clause. But it is contended the subject of the second clause is not embraced in the title.

The phrase “manner of voting,” literally interpreted, applies simply to the act of voting, which is provided for in the Constitution, but, by itself, signifies nothing. It is therefore plain that a more comprehensive meaning was intended and should be given to it. And, if so, ,why may it not fairly be applied to the counting of the votes and ascertaining the result of the voting? It seems to us there is a natural connection between “regulating the manner of voting” and prescribing rules or tests by which-to determine and declare the result, which was the object of the clause in question. Moreover, any one reading or hearing read the title, would be informed that the act was intended to regulate the manner of voting in a particular county, and on a particular question, independent of any other statute, and therefore readily infer that it contained the necessary provision for •determining the result of such election.

2. It is next contended that the act violates section 1, article 10, which declares that “all freemen, when they form a social compact are equal, and that no man or set of men are entitled to exclusive, separate, public emoluments or privileges from the community, but in consideration of public services,” and also section 7, which provides that “all elections shall be free and equal.”

The argument of counsel to some extent is based on a mistake as to the true construction and effect of the statute. - In our opinion the only subscription of stock allowable under the act is one made for and on behalf of Bourbon county, binding on and payable by the whole, not a portion of the county. And, consequently, if the subscription be legally made, all the property of the county alike, without regard to its location or the residence of the owner, may be taxed to pay it; but if not so made, none can be taxed. There can under the act, as we construe it, be no inequality or discriminations between tax-payers, in the assessment of taxes, as is contended. Tire act in substance provides that no tax shall be imposed for the subscription upon property of those residing outside the limits of the city of Paris as they existed under the act of 1868, unless a majority of them vote in favor of the subscription and tax. But, obviously, it was not intended that in case a majority of them voted against the proposition the whole burden, or any burden at all, should, fall on those residing within these limits. The meaning and effect of the act is to require not only a majority of all the votes cast in the county, which sufficed under section 19 of the act of 1854, but also a majority of those residing outside the limits mentioned, in order-to authorize the subscription and tax. And thus construed, is the act in violation of either of the provisions of the Constitution quoted?

In considering this question it must be kept in .view that the power of a county court to make a subscription of stock for the county, and to levy taxes to meet it, is conferred by express grant, to which the Legislature may annex any conditions not repugnant to-the Constitution, or withhold it altogether in any case.. It may, as has been often held, authorize such subscription and levy for a county, or for specified districts-of a county contiguous to and supposed to be more directly benefited by a proposed railroad, exempting, others more remote, or already accommodated with a railroad. It may require a majority of those voting, or a majority of all the votes of the county, or of each district affected, or more than a majority of all, in order to authorize a subscription and tax. While there may be restraints upon the power of the Legislature to impose local burdens for the construction of railroads, or other enterprises projected by and for the-benefit of private corporations or individuals, there is and ought to be full legislative discretion and power to prevent unjust, oppressive and improvident taxation for such purposes, against the will of those upon whom the burden principally falls.

Enforced subscription of stock against the will of the minority to be taxed therefor could not be tolerated except upon the assumption that from the investment the tax-payer will receive a return, and that the advantage to the county or district taxed will compensate for the burden imposed. But experience teaches that a return of dividends upon taxes paid to build railroads is generally delusive, while a sense of justice dictates that residents of a county, or portion of a county, already accommodated with a railroad, and having no interest in the new enterprise, should be protected against a reckless and improvident imposition of taxation, by those who will bear no part of the burden, combined with others who are more immediately and directly interested. And, in our opinion, the Legislature has the undoubted power to provide against such injustice by needful restrictions upon the power to tax for such purposes.

The act of 1876 does not confer the apparently undue influence upon those residing outside the limits- of Paris in order to enable them to vote the subscription and tax against the will and to the detriment of those residing inside the limits. For to do so requires a majority of all the votes of the county cast at the election, and in making up such majority the votes of all are of equal weight. But the purpose and effect of the act is to protect the class mentioned against the imposition of taxes, about seven-eighths of which they will have to pay, for the construction of railroads by others, and -without their consent, and in which some of them may not have any direct interest. YYe do not understand how an act thus intended, and which operates as a mere safeguard against what might be a heavy and unjust local burden, imposed for the immediate benefit of the owners of a railroad charter, can be regarded as the grant of exclusive privileges and emoluments. The statute is intended to protect and conserve the interests and rights of a district or geographical division of Bourbon county, and does not confer, directly or indirectly, a personal privilege at all, much less an exclusive privilege in the meaning of the Constitution. .

In our opinion, the act of 1876 is not invalid for either the reasons mentioned, or any other.

The next ground relied on for reversing the judgment is want of jurisdiction in the circuit court, it being contended that the act of the county court complained of is judicial and not ministerial, and that the only remedy of appellees was by appeal to the circuit court.

Section 19 of the act of 1854, under the authority of which the vote was taken and the subscription made, is not mandatory, but merely permissive in its terms, and .appellant had no fixed or vested interest in the subscription until after it was made, nor right to demand such subscription. Nor, on the other hand, was it bound to accept the subscription when made. Consequently, there was no opposing or diverse interests or rights for the county court to determine and adjudicate. But the duty was imposed to perform the ministerial act of ascertaining the result of the election, and, as agent of the county, to subscribe or not the stock. The power of the circuit court to declare a subscription of stock made by the county court without authority of law void, and enjoin collection of tax to pay it, has been often upheld by this court and never denied. In Bullock v. Curry, 2 Met., 171, this court held that, even after the subscription had been made and bonds issued, the circuit court had jurisdiction to interpose at the suit of tax-payers, and enjoin the collection upon the ground that the county court had no authority to subscribe the stock, because the proposition was not submitted to the voters in the form required by the statute. Though, it is proper to state the bond-holders were not before the court in that case. Jurisdiction of the circuit court in such cases was held to exist in Bowling Green and M. Railroad Co. v. Warren County Court, 10 Bush, 711; Mercer Co. Court v. Kentucky River Navigation Co., 8 Bush, 300, and Judge of Campbell Co. Court v. Taylor, 8 Bush, 206. We are, however, referred to the case of . Shelby County Court v. Cumberland and Ohio Railroad Co., 8 Bush, 209. In that case, there was a proceeding by mandamus to compel the county court to issue the bonds, a subscription of stock having already been made, and it was held that the county court, in deciding upon the question of compliance by the company with the various conditions upon which the subscription was voted, and in which another railroad company had an interest, acted judicially. But in this case there was a subscription without any question being raised or determined in which appellant had an interest.or the right to litigate.

In our opinion, the statute of 1876 being valid and in force, the county court had no authority to subscribe the stock in violation of the conditions contained in that act, which was done, and the subscription so made must be held void and of no effect.

Judgment affirmed.