281 S.W. 1017 (Ky.App. 1926), Louisville Gas & Electric Co. v. Shanks

• Docket Number: .
• Date: 26 March 1926
• Citation: 213 Ky. 762,281 S.W. 1017
• Parties: LOUISVILLE GAS & ELECTRIC CO. v. SHANKS, STATE AUDITOR.
• Court: Kentucky Court of Appeals

Page 1017

281 S.W. 1017 (Ky.App. 1926)

213 Ky. 762

LOUISVILLE GAS & ELECTRIC CO.

v.

SHANKS, STATE AUDITOR.

Court of Appeals of Kentucky.

March 26, 1926

Appeal from Circuit Court, Franklin County.

Action by the Louisville Gas & Electric Company against W. H. Shanks, as Auditor of the State of Kentucky. Judgment for defendant, and plaintiff appeals. Affirmed.

Matt O'Doherty, of Louisville, Cummins, Roemer & Flynn, of Chicago, Ill., and Alex P. Humphrey, of Louisville, for appellant.

Frank E. Daugherty, Atty. Gen., and Chas. F. Creal, Asst. Atty. Gen., for appellee.

SANDIDGE, C.

By this appeal appellant attacks section 4019a9, Kentucky Statutes, as being in violation of the Fourteenth Amendment of the Constitution of the United States, and of section 3 of the Bill of Rights, and sections 170 and 171 of the Constitution of Kentucky. The statute in question provides that, for the privilege of recording mortgages when the indebtedness so secured does not mature within 5 years, a tax of 20 cents upon each $100 or fractional part thereof of such indebtedness shall be paid, exempting from its operation mortgages to building and loan associations. The case of Middendorf, Clerk, etc., v. Goodale et al., Trustees, 259 S.W. 59, 202 Ky. 118, presented to this court the exact questions here raised. There the statute in question was attacked from the same positions taken by appellant here. The Middendorf Case was orally argued to, and was considered by, the whole court. The opinion deals exhaustively with all the questions raised by appellant as affecting the validity and constitutionality of the statute in question. The conclusion of this court, that the statute in question does not contravene any of the provisions of either the federal or state Constitution, was reached after giving full weight to all of the arguments now made by appellant, and after deliberate consideration of the questions involved. That opinion expresses this court's views upon all of them fully and clearly. Repetition is not deemed to be necessary.

The trial court sustained a demurrer to

Page 1018

the petition of appellant which sought to compel the auditor to issue his warrant in its favor for $35,610, that being the amount of the privilege tax paid by it under protest when it had a deed of trust recorded, which it sought to recover herein upon the ground that the statute, supra, is unconstitutional and void. Entertaining the same views with...