Ferguson v. Landram
| Decision Date | 04 June 1868 |
| Citation | 68 Ky. 230 |
| Parties | Ferguson, & c., v. Landram, & c. |
| Court | Kentucky Court of Appeals |
1. To avoid the draft in 1864, a large portion of the people of Gallatin county met at the county seat and resolved to raise twenty thousand dollars as a military fund, to be distributed among those who should thereafter volunteer, in addition to the bounty offered by the Federal Government, and appointed a committee to borrow the money, and to obtain an act of the Legislature to authorize the county court of said county to issue bonds and to levy a tax to reimburse the money so expended. The money was borrowed; the volunteers obtained the draft prevented; the necessary act of the Legislature procured; the bonds issued, and the tax was levied by the county court.
In Ferguson, & c., vs. Landram, & c., 1 Bush, 548, this court held the said act of the Legislature authorizing the issual of the bonds and levy of the tax, to be unconstitutional and invalid as to those who did not participate in procuring its passage, and have never ratified it, and have received no benefits therefrom; but that all who participated in procuring its passage, have acquiesced in or approved it, or have been recipients of benefits under it should not escape responsibility.
NOTE.--Judge ROBERTSON held the act above referred to constitutional; but the majority of the court held it to be unconstitutional.
2. On injunction against collecting the tax, the former decision of this court is adhered to, and the persons therein held responsible are now held liable to the tax, and as being estopped from denying the constitutionality of said enactment.
In procuring the money, and obtaining with it the volunteers such parties violated no law of morality or of the Government; their contract was not void for want of consideration or for illegality; but it is the means by which the sum for its reimbursement is to be raised that they assail.
3. Parties are estopped from denying the constitutionality of a local statute by participating in the procurement of its passage; by ratifying, acquiescing in, or approving it after its passage, and by becoming recipients of benefits under it; and all such persons are held to be liable to the tax authorized by such enactment, although it is unconstitutional and invalid as to all other persons. (4 Kent, Comstock's ed., note 4, s. p. 261; 3 Hill, 219; Moran et al. vs. Commissioners of Miami County, 2 Black, 722.)
APPEAL FROM GALLATIN CIRCUIT COURT.
JOHN W. STEVENSON, For Appellants,
CITED--
1 Bush, 548, 565, 586-7; Ferguson, & c., vs. Landram, & c.
18 Howard, 347-8; Dodge vs. Woolsey.
16 Eng. Law and Equity R., 180; McGregor vs. Official Managers of D. and D. R. R.
17 Eng. Law and Equity R., 505; East. Ang. R. R. vs. Eastern Counties.
12 Beavan's Rep., 339; Solomon vs. Laing.
21 U. S. Rep., 441; Pearce vs. Madison and Quincy R. R.
3 McLean's R., 102; Root vs. Goddard.
4 McLean's R., 8; Root vs. Wallace.
8 Gill & Johnson, 248; Dandridge's Case.
22 Conn., 502; Hood vs. N. Y. and N. Haven R. R. Co.
23 Conn., 457; Elmore vs. Naugatuck.
24 Conn., 159; Mutual Savings vs. M. Agency Co.
16 B. Mon., 422; Sandford vs. McArthur.
5 Denio, 567; McCullough vs. Moss.
13 Barbour, 137; Cohoe's Con. vs. Goss.
5 Eng. L. and E., 533; Callon vs. Jenkinson.
19 Maryland R., 72; Cecil vs. Cecil.
12 Barbour, 128; Peckard vs. Sears.
6 Adolph & Ellis, 469; 10 Iredell's Rep., 110.
4 Hawk's N. C. R., 132; Taylor vs. Sherford.
4 Dev. & Bat. N. C. R., 407; Cowle vs. Lumsford.
6 Selden (10 N. Y. ), 402; Jewell vs. Weller.
11 Illinois, 531; Mussan vs. Noble.
JOHN J. LANDRAM and JOHN L. SCOTT, For Appellees,
CITED--
4 Mass., 593; Buckminster vs. Perry.
7 Pick, 94 ; Brooks vs. Barrett.
8 Conn., 254; 8 Greenleaf, 42.
6 Mass., 397; Hubbard vs. Hubbard.
12 Pick., 177; Lane vs. Crombie.
4 Eng. Law Eq. Rep., 531.
4 Greenleaf, 226; Gibson vs. Waterhouse.
6 Greenleaf, 274; Smith vs. Moore.
1 East, 637; Rex vs. Stone.
5 M. & S., 206; Rex. vs. Turner.
14 Illinois, 279; Woodbury vs. Frink.
Session Acts 1865, sec. 6, p. 66.
13 B. Mon., 26; Slack vs. Maysville and Lexington R. R. Co.
10 Amendment to U. S. Constitution.
9 B. Mon., 343; Cheaney vs. Hooser.
9 Dana, 23; City of Lexington vs. McQuillan's heirs.
4 Wheaton, 428; McCulloch vs. State of Maryland.
4 Peters, 514; Providence Bank vs. Billings.
4 Comstock 424; The People vs. Brooklyn.
19 N. Y., 116; Brewster vs. The City of Syracuse.
34 Barbour, 69; The People vs. Hawes.
36 Barbour, 192; The People vs. Lawrence.
42 Barbour, 288; Litchfield vs. McCombs.
5 Howard, 410; Fox vs. The State of Ohio.
14 Howard, 13; Moore vs. State of Illinois.
5 Wheaton, 1; Huston vs. Moore.
9 Wheaton, 203; Gibbons vs. Ogden.
6 Cranch, 87; Fletcher vs. Peck.
11 B. Mon., 150; Clark County vs. Paris Road.
Law Register, Sept., 1865; Speer vs. Blairsville.
Law Register, Feb., 1866; Booth vs. Town of Woodbury.
Law Register, Jan., 1867; Taylor vs. Thompson.
This case has heretofore been before this court, and may be found reported in 1 Bush, 554, where a more detailed history will be found. It is sufficient now to state, that, in view of the impending draft ordered by the President of the United States in August, 1864, under authority of the several congressional acts, for Federal soldiers to serve three years, or until the close of the then existing war, that portion of the male people of Gallatin county within military age were required to furnish one hundred and forty-seven soldiers as their quota. To avoid the draft, and to facilitate the raising of volunteer soldiers, a large portion of the people of the county met at their county seat August 29, 1864, and resolved to raise twenty thousand dollars as a military fund, to be distributed among those who should thereafter volunteer in addition to the bounty offered by the Federal Government, and appointed a committee to borrow the money and to obtain an act of the State Legislature authorizing a taxation to raise the means to reimburse the loan.
The money was borrowed; the volunteers obtained; the draft prevented, and the necessary enactments passed by the Legislature; and all seemed satisfactory until the close of the war in the spring of 1865; after which, a large number of the citizens of the county filed a petition praying an injunction from the levy and collection of the taxes on and from them.
When this case was previously here, this court decided that the Federal Government, having gone directly to the people as a Government, and not calling on the different States, as it might have done, to furnish their proper quota, that the State had no constitutional power to levy an involuntary tax on the citizens of the various counties to give to the Federal soldier an additional compensation, nor had it the power to levy an involuntary tax on those not subject to military duty, to aid those who were to escape their responsibility by way of inducing volunteers for such additional compensation.
But this court then held, that, so far as citizens had voluntarily authorized the raising of said sum, or had memorialized the Legislature to enact the law, and had received its benefits, and by their own actings and doings had procured the enactments, had tacitly, or otherwise voluntarily, consented to it by receiving its benefits, or owed said military service, they should not be heard to assail its validity, or the taxes levied under it to raise the funds thus obtained at their own instance, or expended for their own use.
On the return of the cause, amended pleadings were filed, averring that the plaintiffs belonged to the classes which this court had said should not be permitted to assail said enactments; and the court having on final trial so adjudged as to a portion, they have brought up the case again for review; insisting, first, that they are not estopped from assailing the said statutes, even if they sought their enactments or were benefited thereby, because, as to unconstitutional enactments, there can be no estoppel; secondly, that they have done nothing as matters of fact to estop them, even under the ruling of the court.
Their counsel insisting that the only question before the court formerly being the invalidity of those statutes, no question of estoppel was involved, and, therefore, not res adjudicata, but obiter dictum. If, however, the former, he respectfully asks a reconsideration of the question, as it was not presented and argued by the counsel on that trial. We have, therefore, duly considered it again on the able arguments and imposing lists of authorities presented.
It is insisted that not a case can be found wherein a party was estopped from urging the constitutional invalidity of an enactment. Were this so, still it would not necessarily establish the affirmative of the proposition, but would only leave the question to be determined upon its own intrinsic merits from the peculiar facts developed.
Whilst it may be justly conceded that there are many phases in which unconstitutional statutes might be assailed, perfectly consistent with strictly legal principles and the most...
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