Bank Lick Turnpike Co. v. Phelps

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

81 Ky. 613

5 Ky.L.Rptr. 713

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

Court of Appeals of Kentucky.

February 26, 1884

1. A writ of prohibition can not be granted merely to prevent an inferior tribunal from deciding erroneously, nor from enforcing an erroneous judgment or order.

2. The remedy is by an appeal.

3. The provision in appellant's charter, which requires tolls to be reduced whenever it is ascertained that the road pays a greater dividend than the amount allowed by law, confers an implied power upon the Kenton County Court to determine not only the tolls collected and due the company, the cost of repairs, but also the amount of the original capital stock in the company.

APPEAL FROM KENTON CHANCERY COURT.

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

No brief.

OPINION

LEWIS JUDGE:

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...