Maysville & Lexington Turnpike Road Co. v. Wiggins

• Decision Date: 22 October 1898
• Citation: 104 Ky. 540,47 S.W. 434
• Parties: MAYSVILLE & L. TURNPIKE ROAD CO. v. WIGGINS. [1]
• Court: Kentucky Court of Appeals

47 S.W. 434

104 Ky. 540

MAYSVILLE & L. TURNPIKE ROAD CO. v. WIGGINS. ^[1]

Court of Appeals of Kentucky.

October 22, 1898

Appeal from circuit court, Nicholas county.

"To be officially reported."

Action by Aris Wiggins against the Maysville & Lexington Turnpike Road Company and others to enjoin the levy of a tax. Judgment for plaintiff, and the Maysville & Lexington Turnpike Road Company appeals. Reversed.

Hanson Kennedy, Norvell & Robertson, Kennedy & Williamson, Turner &amp Hazelrigg, and John F. Morgan, for appellant.

Winfield Buckler and J. H. Minogue, for appellee.

HAZELRIGG J.

After a favorable vote upon a submission of the question to the voters of Nicholas county at the regular election in November, 1896, whether they were "in favor of free turnpikes and gravel roads," in pursuance of the act of March 17, 1896, the fiscal court in November, 1897, entered into a contract with the Maysville & Lexington Turnpike Road Company, by which it purchased, at the price of $23,000 payable in yearly installments of $200 each, some 15 miles of the road situated in Nicholas county. Thereupon Wiggins, a taxpayer of the county, for himself and others, instituted his action to enjoin the levy of any tax on behalf of the contract of purchase, and to have the contract declared void on the following grounds: Notwithstanding the authority to make the contract is conferred in the act in question, the constitution, by section 179, prohibits counties from buying turnpikes or gravel roads from any company, association, or corporation; and therefore the act of March, 1896, is unconstitutional. The contract incurs an indebtedness in an amount exceeding, in the year 1897, the income and revenue provided for that year; and no election has been held to obtain the assent of the voters of the county, as provided in section 157 of the constitution.

The first contention is easily disposed of. Section 179 of the constitution reads as follows: "The general assembly shall not authorize any county or subdivision thereof, city town or incorporated district, to become a stockholder in any company, association or corporation, or to obtain or appropriate money for, or to loan its credit to, any corporation, association or individual, except for the purpose of constructing or maintaining bridges, turnpike roads or gravel roads: provided, if any municipal corporation shall offer to the commonwealth any property or money for locating or building a capitol, and the commonwealth accepts such offer, the corporation may comply with the offer." It needs no argument to show that this purchase from the company of its turnpike road, together with all its "rights, privileges, and appurtenances," as expressed to the contract of purchase and conveyance to the county, does not make the county a stockholder in the company; nor does the county thereby appropriate money for, or loan its credit to, the company. It is said this seems clear enough with respect to the question of the county becoming a stockholder and of loaning its credit, but that it is certainly an appropriation of money for the company. We think not. To buy and pay for the roadbed, toll houses, rights, and privileges of the company is not to "appropriate money for" the company, within the meaning of the constitution. The appropriation is not "in aid of," "for the sake of," or "on account of" the company, and is therefore not an appropriation for the company. It is not a gift or loan of credit to the company. In fact, the company, as to the purchased property and the exercise of further right thereover, becomes extinct, and no longer exists in Nicholas county. But, if it be such an appropriation, it is...