Opinion op the court by
JUDGE HOBSON
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first of these cases, (see Yanceburg, etc., Turnpike Co. v. Maysville, etc., R. Co., 25 R., 1404, 68 S. W., 749) was withdrawn, and a reargument1 ordered.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 [280]*280purposes, the sum of fifty cents upon each $100 worth of taxable property each year, commencing with the year 1891, continuing until the road was built and paid for It was also provided that the* company might appoint an assessor to assess the property of individuals subject to taxation; his assessment to be returned to the May or June term of the Lewis county court in each year and to be subject to correction thereby. The taxes were then to be listed with the sheriff of Lewis county for collection. As to railroad property, the Lewis county court was required, at its January or February term in each year, to appoint two commissioners to ascertain and report the number of miles and the value of the property within thirty days from this' report, and such other evidence as might be introduced by any party in interest; and the judge of the county court was required to make an assessment of the property, and certify it to the railroad company. The taxes levied were required to be listed with the sheriff for collection on or before the fifteenth of July of each year. They were due from that date, and the sheriff might then proceed toy collect and distrain therefor. Persons paying taxes became stockholders; in the company to the amount of taxes paid, and certificates should be delivered to them therefor whenever they paid an amount equal to $25 until ihe road was completed and paid for. The company organized as provided in the charter on June 13, 1891, and proceeded then and for each year thereafter to have the property assessed within the taxing district as provided by the charter; the order of the county court for that year as to the appointment of commissioners to assess the railroad property being made at the June term. The taxes were placed in the hands of the sheriff for collection and the company proceeded with the construction of its pike.
[281]*281T. J. Bruce and other individual taxpayers residing in the taxing district then filed a suit enjoining the collection of the taxes on the ground, among other things, that the statute was unconstitutional. The circuit court perpetuated the injunction, and on appeal to this court the judgment was affirmed. The court said: “It seems to us that so much of the act in question as attempts to provide for the assessment of the property in the taxing district is unconstitutional and void, and that the appointment and assessment made by the appointees of the company are both invalid. But the Legislature had power to levy the tax, and to that extent the act in question is valid; and by virtue of the general law the assessor of the county should assess the property in the taxing district, and return the same as other tax lists are returned, and that the taxpayer should have the same right to obtain corrections in or modifications of the list as is allowed by the general law respecting the assessment of property for general taxation.” Bruce v. Vanceburg, etc., Turnpike Co., 18 R., 35, 35 S. W., 112. After this opinion was rendered the turnpike company procured from the county court an order directing the county assessor to assess the property as indicated in the opinion, and to return his assessment to the county clerk, to be submitted to the county board of equalization.
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 [282]*282charter, which was in this respect held unconstitutional in the case above referred to. The second of the above actions was brought by Bruce and others on July 5, 1897, to restrain the sheriff from levying on or selling their property under the assessment made under the charter before the property had been assessed by the county assessor as indicated in the opinion of this court ab,ove quoted. The subsequent assessment by the county assessor was set up in the action, and the case, as finally presented, involved the right of the turnpike company to collect the taxes at all. The court perpetuated the injunction in that case, and also dismissed the petition in, the first action above named, in which the turnpike company undertook to collect from the railroad company its taxes. From these judgments the turnpike company appeals.
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 [283]*283had ample opportunity to appear before the county board of supervisors and have any errors corrected.
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.
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Opinion op the court by
JUDGE HOBSON
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 [280]*280purposes, the sum of fifty cents upon each $100 worth of taxable property each year, commencing with the year 1891, continuing until the road was built and paid for It was also provided that the* company might appoint an assessor to assess the property of individuals subject to taxation; his assessment to be returned to the May or June term of the Lewis county court in each year and to be subject to correction thereby. The taxes were then to be listed with the sheriff of Lewis county for collection. As to railroad property, the Lewis county court was required, at its January or February term in each year, to appoint two commissioners to ascertain and report the number of miles and the value of the property within thirty days from this' report, and such other evidence as might be introduced by any party in interest; and the judge of the county court was required to make an assessment of the property, and certify it to the railroad company. The taxes levied were required to be listed with the sheriff for collection on or before the fifteenth of July of each year. They were due from that date, and the sheriff might then proceed toy collect and distrain therefor. Persons paying taxes became stockholders; in the company to the amount of taxes paid, and certificates should be delivered to them therefor whenever they paid an amount equal to $25 until ihe road was completed and paid for. The company organized as provided in the charter on June 13, 1891, and proceeded then and for each year thereafter to have the property assessed within the taxing district as provided by the charter; the order of the county court for that year as to the appointment of commissioners to assess the railroad property being made at the June term. The taxes were placed in the hands of the sheriff for collection and the company proceeded with the construction of its pike.
[281]*281T. J. Bruce and other individual taxpayers residing in the taxing district then filed a suit enjoining the collection of the taxes on the ground, among other things, that the statute was unconstitutional. The circuit court perpetuated the injunction, and on appeal to this court the judgment was affirmed. The court said: “It seems to us that so much of the act in question as attempts to provide for the assessment of the property in the taxing district is unconstitutional and void, and that the appointment and assessment made by the appointees of the company are both invalid. But the Legislature had power to levy the tax, and to that extent the act in question is valid; and by virtue of the general law the assessor of the county should assess the property in the taxing district, and return the same as other tax lists are returned, and that the taxpayer should have the same right to obtain corrections in or modifications of the list as is allowed by the general law respecting the assessment of property for general taxation.” Bruce v. Vanceburg, etc., Turnpike Co., 18 R., 35, 35 S. W., 112. After this opinion was rendered the turnpike company procured from the county court an order directing the county assessor to assess the property as indicated in the opinion, and to return his assessment to the county clerk, to be submitted to the county board of equalization.
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 [282]*282charter, which was in this respect held unconstitutional in the case above referred to. The second of the above actions was brought by Bruce and others on July 5, 1897, to restrain the sheriff from levying on or selling their property under the assessment made under the charter before the property had been assessed by the county assessor as indicated in the opinion of this court ab,ove quoted. The subsequent assessment by the county assessor was set up in the action, and the case, as finally presented, involved the right of the turnpike company to collect the taxes at all. The court perpetuated the injunction in that case, and also dismissed the petition in, the first action above named, in which the turnpike company undertook to collect from the railroad company its taxes. From these judgments the turnpike company appeals.
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 [283]*283had ample opportunity to appear before the county board of supervisors and have any errors corrected.
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 [284]*284its charter to resume possession for the purpose of finishing the road at any time it is financially able to do so, and also all its rights under its charter.” Under this resolution a lease was made, stating that during the litigation, in regard to the collection of taxes for the construction of the .road, and as the company was unable, from lack of funds, to finish the road or keep it in repair, or to build a sufficient length of road to erect a gate and .collect toll, the company, in consideration of the premises, leased its road, so far as built, to the county, until it was in a condition financially to resume control; the county agreeing to surrender possession to the company when it was able and desired to retake possession and resume the work of construction under its charter., It is insisted for appellant that 'the company thus surrendered its franchises. The legal effect of the contract thus made is entirely different from that provided for by the free turnpike act (Ky. St., 1903, section 474b, subsection 8) which provides that, when a pike shall be sold to the county, the charter, franchises, and privileges of the company shall be at once dissolved and] terminated. The road in this case was not sold to the county. The county court simply took charge of it temporarily under its general power of providing for the county highways, the pikes having been in part built upon the line of the county road. See Ky. St., 1903, section 4306.
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[285]*285ting ready for the completion of the first section necessary for a tollgate. The charter of the company contains the following?
“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]*286had 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 [287]*287fovor of the defendants. . The act of November 11, 1892, was a general law regulating taxation. By article four it regulated the assessment and payment of taxes by railroads, not only for State and county purposes, but for the purposes of each tax district of any kind. Section seven, Acts 1891-93, p. 308. This act superseded all local or special acts regulating the assessment of-railroad property, and repealed to this extent the provisions of appellant’s charter providing for a different mode of assessment of railroad property. The plaintiff’s petition, in so far as it sets out the assessment made by the commissioners of the county court stated matteri that was surplusage. There was no inconsistency between the allegations of the petition. The court was simply asked to determine which was the legal assessment, and this 'he should have done. The plaintiff stated but one cause of action, and there was no more reason for requiring an election than there would have been if 'the plaintiff had set up in a suit for real estate two deeds ex-cuted by the defendant, alleging that the defendant claimed that one or the other was void, and he did not know which was valid; the same property being embraced in each. The assessments referred to were precisely the same for some of the years, and substantially the same for all. But by section seven, art. 4, p. 308, of the act of 1892, it was provided that the same rate of taxation which was levied on other real estate in any year should also be levied on railroad property. So far as appears from the record, there has been no assessment, in law, of the property of individuals in the taxing district referred to for any year previous to 1S95. This being so, no tax can be collected from the railroad company for any year previous to 1895.
The judgment in each case appealed from is therefore [288]*288reversed, and the cause is remanded, for further proceedings consistent herewith.
Petition for re-hearing overruled.