Bank Lick Turnpike Co. v. Phelps

• Decision Date: 26 February 1884
• Citation: 81 Ky. 613
• Parties: Bank Lick Turnpike Co. v. Phelps, County Judge.
• Court: Kentucky Court of Appeals

Page 613

81 Ky. 613

Bank Lick Turnpike Co. v. Phelps, County Judge.

Court of Appeals of Kentucky.

February 26, 1884.

APPEAL FROM KENTON CHANCERY COURT.

A. C. ELLIS AND O'HARA & BRYAN FOR APPELLANT.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

February 10, 1869, the General Assembly passed an act to amend the charter of appellant, the Bank Lick Turnpike Company, the fourth section of which is as follows: "That the gate-keepers are required to report in the months of July and January of each year to the Kenton county court, under oath, the amount of tolls collected or due said company; and whenever it is ascertained that the road pays a greater dividend than ten per cent. per annum upon the original capital stock, then the tolls are to be reduced until it nets ten per cent. only upon its stock; and the surveyor or president of said road shall report under oath to the county judge, in January and July of each year, with vouchers, &c., the cost of all repairs to said road."

In the petition filed by appellant, a general demurrer to which was sustained, it is alleged that before the passage of the act of 1869, the company had, under the authority of its original charter and amendments thereto, for the purpose of raising money to construct its road, issued and sold stock to the amount of $40,000; that the reports required by section 4 of the act of 1869 have been made at the appointed times for five years or more before the commencement of this action, and that exceptions being filed by the county attorney to the one made in January, 1881, the court decided that the net receipts of the tolls by the company were in excess of ten per cent. per annum upon their capital stock, which, by an order of court made in April, 1877, had been estimated and fixed at $26,350, and thereupon made an order reducing the tolls below the rates fixed by the directors of the company under authority of its charter.

It alleges that in fact the net income or receipts from the tolls have not, at any time since the passage of the act of 1869, exceeded ten per cent. per annum on its capital stock, even estimating it at the amount fixed by the county court, and that as shown by reports made in July, 1881, and January, 1882, the net income for the year 1881 has been less than ten per cent.

It is further alleged that the county judge, claiming jurisdiction to determine the capital stock of the company, and the right to control it in the matter of its expenditures in keeping up the road, has made orders reducing salaries that the directors had contracted to pay its officers and employes, refusing to allow in the account of expenses sums actually paid for necessary repairs, and including in the receipts accounts for tolls not collected and uncollectable.

The object of this action is to obtain from the Kenton chancery court a writ of prohibition enjoining the judge of the county court from further proceeding under the order made in January, 1881, and the rule subsequently...