Eakins v. Eakins

• Decision Date: 13 October 1892
• Citation: 20 S.W. 285
• Parties: Eakins et al. v. Eakins et al.
• Court: Kentucky Court of Appeals

20 S.W. 285

Eakins et al. v. Eakins et al.

Court of Appeals of Kentucky.

October 13, 1892

Appeal from court of common pleas, Henderson county.

"Not to be officially reported."

Action by E. G. Eakins and others against C. W. Eakins and others to enjoin the collection of taxes. From a judgment dissolving a temporary injunction, and dismissing the action, plaintiffs appeal. Affirmed.

Lewis J.

An act for the benefit of common school districts Nos. 33 and 34 of Henderson county was passed and approved March 14, 1890 authorizing the trustees of said districts, consolidated, to submit to qualified white voters thereof at a general or special election the question whether the district shall be taxed, in discretion of the trustees, at a rate not exceeding 75 cents on $100, and a per capita tax of not exceeding $5 upon each male person over 21 years of age, for the purpose of erecting a suitable school building, and creating a fund necessary to insure pay of teachers for a ten-months school each year for a period not exceeding five years. The election having been held, at which votes of a majority of those voting were cast in favor of the tax, and the person selected by the trustees for the purpose having proceeded to collect the tax, this action was brought May 19 1891, by appellants, taxpayers of the district, against appellees, three of whom are trustees and one the collector to enjoin perpetually such collection. And this is an appeal from final judgment dissolving the injunction temporarily obtained, and dismissing the action.

Various grounds for reversing the judgment are urged in argument that we will consider in order.

1. The act authorized only white persons to vote at the elections, and certainly if negroes residing within the district can be taxed for the purposes set forth, being at the same time denied the right to vote at such election, their constitutional rights would be violated. But appellants cannot make that objection, for two reasons: First, being white persons, they are not injured, and, as has been more than once decided by this court, cannot complain; second, the act fairly construed does not subject the property or persons of negroes in the district to taxation; for while it is not expressly provided that only persons and property of white persons are to be taxed, it would be so plainly unjust and unconstitutional to tax negroes, under the circumstances, that it is the duty of the court to presume that the legislature never intended it to be done.

2. The notices of the election appear from the evidence to have been given the length of time previous to the election and posted at the...