Bitzer v. Thompson, Judge, &C.

• Decision Date: 31 January 1899
• Citation: 105 Ky. 514
• Parties: Bitzer v. Thompson, Judge, Etc.
• Court: Kentucky Court of Appeals

Page 514

105 Ky. 514

Bitzer v. Thompson, Judge, Etc.

Court of Appeals of Kentucky.

January 31, 1899.

APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.

LANE & BURNETT FOR THE APPELLANT.

C. A. WILSON, AND HENRY L. STONE, FOR THE APPELLEE.

JUDGE GUFFY DELIVERED THE OPINION OF THE COURT.

The complaint of the plaintiff in this action is that the city of Louisville, by an ordinance passed 1st of April, 1896, ordained that every person, firm, or corporation who bought claims should annually pay a license of $150 per year into the Sinking Fund of the city of Louisville for the purpose of said Sinking Fund, and that such sum of $150 should be paid in advance in lawful money of the United States, and any person violating the provisions of said ordinance should be subject to a fine of not less than five dollars nor more than one hundred dollars; that prior to the 1st of April, 1896, the plaintiff had been engaged, and is now engaged, in buying claims against the city of Louisville, which the city of Louisville admits that it owes, and has not paid said claims because it has not the present means with which to pay same; that he has heretofore bought no claims other than those against the city of Louisville, and that, so far as the ordinance heretofore referred to requires this plaintiff to pay the sinking fund an annual income of $150 in advance, or at all, for the privilege of buying such claims against the city of Louisville, it is void. It is also claimed that there is no such corporation or body in existence as the Commissioners of the Sinking Fund of Louisville. It is further averred in the petition that the plaintiff had been fined in the police court of Louisville for violation of said ordinance. The appellant instituted this action under section 163 of an act approved July 1, 1893, for the government of cities of the first class, for the purpose of obtaining a writ of prohibition against the appellees prohibiting them from enforcing the collection of the fine assessed against him as aforesaid.

A demurrer was sustained to the petition, and same dismissed, and the writ of prohibition denied, and from that judgment this appeal is prosecuted.

It is insisted ably, and at great length, that there is no such corporation and institution in existence as the Commissioners of the Sinking Fund of the city of Louisville; that the provision in the said charter of cities of the first class, which it is claimed continues or creates said sinking fund,...