Louisville & N.R. Co. v. Hopkins County

• Decision Date: 20 October 1888
• Parties: LOUISVILLE & N. R. CO. v. HOPKINS COUNTY. (NO. 1.) SAME v. SAME. (NO. 4.) SAME v. CHRISTIAN COUNTY. (NO. 2.) SAME v. SAME. (NO. 3.)
• Court: Kentucky Court of Appeals

9 S.W. 497

87 Ky. 605

LOUISVILLE & N. R. CO. v. HOPKINS COUNTY. (NO. 1.)

SAME v. SAME. (NO. 4.)

SAME v. CHRISTIAN COUNTY. (NO. 2.)

SAME v. SAME. (NO. 3.)

Court of Appeals of Kentucky.

October 20, 1888

Cases Nos. 1 and 4 are appeals from circuit court, Hopkins county; Nos. 3 and 2 appeals from circuit court, Christian county.

John Feland, for appellant.

Landes & Clarke, for appellees.

LEWIS C.J.

As these four cases require the same recital of facts, and directly or incidentally involve the same questions of law counsel have agreed they be heard and decided together. In 1851 a corporation, "The Henderson & Nashville Railroad Company," was chartered to construct a railroad from Henderson, Ky. to Nashville, Tenn., but after securing the right of way, and grading a portion of it, (how much does not appear,) the work was abandoned on account of the late war. In 1867 a company, "The Evansville, Henderson &amp Nashville Railroad Company," was incorporated, and by purchase became the owner of the property and franchises of the first named; and with the proceeds of bonds issued by the city of Evansville and the counties in Kentucky through which the road extends, including Christian and Hopkins, in payment of stock subscribed by them to the capital stock of that company, amounting to about $1,000,000, and the proceeds of a bond of the company for the same amount, secured by mortgage on that portion of it in this state, the road was completed and put in operation. But in 1879, under a decree rendered in the district court of the United States, all that part of the road that had been mortgaged, certain real estate and rolling stock, together with the chartered rights and franchises of the company, were sold and purchased by the Louisville &amp Nashville Railroad Company, which has owned and operated the road ever since. The first of these actions in order was instituted by the county of Hopkins against the Louisville &amp Nashville Railroad Company, to recover a balance unpaid of taxes alleged to be due by the defendant on its property situated in that county under a levy made by the county court for the year 1872, to pay interest on the bonds issued in payment of the county's subscription to the capital stock of the Evansville, Henderson & Nashville Railroad Company, before mentioned, and taxes alleged to be wholly due and unpaid under levies for the same purpose for each of the years 1883-84-85. The second was instituted by the county of Christian to recover of the same defendant on unpaid balance of taxes for the year 1882, and the amount for each of the years 1883-84-85, alleged to be due under levies made to pay the interest and principal of bonds that county issued to pay its subscription to the capital stock of the same company. The third, an action in equity, was instituted by the Louisville & Nashville Railroad Company against the county of Christian, to recover back the several amounts of such taxes collected under levies for the years 1879-80-81, in part for the year 1882, which the plaintiff alleges were paid by it in ignorance of the law and facts, and of its rights, when it did not owe any part thereof. The fourth, also an action in equity, was instituted by the Louisville & Nashville Railroad Company against the county of Hopkins, to recover back the several amounts of such taxes collected by that county for the same years, and likewise alleged to have been paid by the plaintiff in ignorance of the law and facts, and of its rights, no part of which it owed. In the first and second of these two actions, the entire property of the defendant being 31 4-5 miles of road, including land, improvements, and equipments in the county of Christian, and 27.72 miles of road, land, improvements, and equipments in the county of Hopkins, were adjudged by the lower court liable for taxes levied to pay the said bonded indebtedness of the two counties, respectively, as well as for those levied to pay the ordinary county expenses, which were also sued for in each case, but not now disputed by the defendant; and judgments were accordingly rendered in favor of each plaintiff for the amounts severally claimed by them. In the third and fourth actions judgment was rendered in favor of each of the defendants, and the actions were as to each dismissed. From all the judgments the Louisville & Nashville Railroad Company has appealed, and in the first and second cases appellees have been granted cross-appeals.

There is no controversy about the assessment of the property in the two counties, as they were made by the county courts according to the rate fixed by the state board of equalization for the entire road within the state. Whether railroad property situated in a county is liable to taxation to pay the subscription of stock made by such county towards constructing the road is a question which was first presented to and decided by this court in Applegate v. Ernst, 3 Bush, 648. It was then held not to be liable, the following language being used: "If liable for any portion of that subscription, it would to that extent pay the debt of the stockholders, or remit so much of the amount subscribed to itself, and consequently would get that much less than the subscription to it, or for its use. * * * To tax the road itself for that selfish purpose would be repudiation to the extent of the tax." The rule there laid down does not, however, absolutely and fully apply where the road has been purchased by, and become the property of, a new company, to which the county does not sustain the relation of...