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

• Decision Date: 31 March 1891
• Citation: 91 Ky. 388,15 S.W. 1061
• Parties: MARION COUNTY v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

15 S.W. 1061

91 Ky. 388

MARION COUNTY v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

March 31, 1891

Appeal from circuit court, Marion county.

S. T Spalding and Lewis Edelin, for appellant.

W. J Lisle, for appellee.

HOLT C.J.

The Marion county court for the year 1886 levied for county purposes not only a head tax, but 20 cents for turnpike roads, and 30 cents for general purposes, upon each $100 of taxable property in the county. In 1887 it levied the same head tax, and also 10 cents jail tax, 20 cents turnpike tax and 15 cents for county indebtedness upon each $100 of taxable property. The appellee paid the turnpike tax of 1886, but resisted the payment of the 30-cent tax of that year for general county purposes. The tax of 1887, to pay for the building of the county jail, is not in contest. It is suggested that it has been paid; but the appellee denies the right of the county to compel the payment for 1887 of the 20-cent turnpike tax, and the 15-cent tax to pay county indebtedness. The answer denies the existence of any legislative authority in the county court to levy the turnpike tax. The act of April 19, 1882, however, expressly gives it, (2 Acts 1881, p. 664,) and the power is conceded in argument; but it is said there was no turnpike debt in 1887, and that a tax levy to pay what is not owing is void, because there is no taking of private property for public use, but a taking when no use exists. It appears, however, that in 1885 there was a deficit as to the county indebtedness of several thousand dollars. It was carried to 1886, when it was still more. We cannot tell how much of it was turnpike indebtedness. This is not shown by the record, but at least a portion of it accrued on that account. The money to pay this deficit was borrowed from the sinking fund of the county, and the county clerk testifies that at the time of giving his deposition (1889) it had not been repaid. While, therefore, there may not in 1887 have been any turnpike debt eo nomine owing, yet an indebtedness existed which was created on account of it. It is said, however, tl at, considering the value of the property of the county, the turnpike tax of 20 cents for 1886 was certainly sufficient to discharge all the turnpike debt of the county existing in that year. This is not shown, however, and, as already stated, it was still owing at a subsequent date.

As to the levy in each year to pay the general indebtedness of the county, it is said that there was then no law authorizing the levy of an ad valorem tax for this purpose. This is true. The statute did not authorize such a tax, but only a head tax for county purposes generally. The legislature however, passed an act on April 10, 1888, which, after reciting that these levies had been made, and the existence of doubts as to their legality, declared them "valid, and in full force and effect, as fully as if said county court of levy and claims had been empowered to levy said amount for the purposes mentioned in said levies." 2 Acts 1887-88, p. 1067. It is contended that the levies when made were void for the want of legislative authority to make them, and that the legislature could not, therefore, by subsequent legislation, make them valid. The county court had power to levy a head tax to meet the general indebtedness of the county. It could not levy the particular tax in contest. It had power to act upon the subject; it had jurisdiction to levy a tax for the purpose, but not one of a certain character. The power conferred was so restricted as not to embrace it. The levying of it, therefore, was a case of irregularity, and not of...