Maysville v. Shultz

• Decision Date: 13 April 1835
• Citation: 33 Ky. 10
• Court: Kentucky Court of Appeals
• Parties: The City of Maysville <I>vs.</I> Shultz.

Page 10

33 Ky. 10

The City of Maysvillevs.

Shultz.

Court of Appeals of Kentucky.

April 13, 1835.

Mr. Hord for Plaintiff: Mr. Crittenden for Defendant.

FROM THE CIRCUIT COURT FOR MASON COUNTY.

Chief Justice ROBERTSON delivered the Opinion of the Court.

THIS writ of error is prosecuted to reverse a judgment obtained against the city of Maysville, by Christian Shultz, for four hundred and sixty two dollars, eighty seven cents, in an action of assumpsit, for cutting down and grading a street, at the instance and request of the Trustees, prior to the incorporation of the city.

The counsel for the plaintiff in error urges three objections to the judgment: they are — first, that the action is not maintainable against the city; second, that the Circuit Court erred in deciding that a citizen of Maysville, was not a competent witness for the city, — and third, that it erred in refusing to instruct the jury, that, "if "they believed that the dirt removed by the plaintiff, "was valuable to the plaintiff, the jury ought to deduct "what would be equivalent to such value, provided they "should be of opinion that the dirt was applied to purposes "useful and valuable to the plaintiff, and that it "might have been as conveniently applied to fill a place "in another part of the same street from which it was "removed, which required filling, to make it of a proper "grade with that part which was graded by the plaintiff."

These objections will now be considered, in the order in which they have been stated.

First. The basis of the argument in support of the first objection, is of a twofold character: first, that there is no legal identity between the city of Maysville and its predecessor the town of Maysville; — and second, that the city is, therefore, under no legal obligations to pay the pre-existent debts of the town.

These positions are, in our opinion, altogether indefensible. Maysville, whether called town or city, is the same. This is established by the statute of incorporation, and is judicially known. There has been no essential metamorphosis. Every thing which constitutes substantial identity remains the same. The only difference between the City and the Town of Maysville is in name and in power. One is corporate; the other was quasi corporate. One was represented by its trustees; the other is represented by its mayor and councilmen. A debt due by the people of the town of Maysville, is a debt due by the people of the city of Maysville; and therefore a debt due by the town is the debt of the city. The nominal transmutation from town to city did not exonerate the community of Maysville from legal liability for its just debts contracted whilst it was represented by trustees, instead of a mayor and councilmen. By changing its title and its agents, it only shifted its authority and responsibilities from one set of organs to another. No change in its form of government can extinguish the obligations of a community or a nation. An unpaid debt of republican France is equally the debt of regal France. The corporation of Maysville is but the community of Maysville with a legal name and legal individuality. The "city" is no new and independent corporation; it is but an extension and modification of the superseded quasi corporation — the town. It is certainly the duty of the city to pay the debts of the town; and the law therefore, will raise an implied promise by the city, to pay whatever the town was legally liable to pay, and had not paid, when it changed its name. Wherefore it seems to this court that this action is maintainable against the city of Maysville.

Second. In support of the opinion of the Circuit Judge on the second point, the defendant's counsel insists, that a tax-paying citizen of Maysville, such as the rejected witness, is incompetent as a witness for the city, because a judgment against the corporation may increase the burthen on himself.

The citizens of Maysville are not personally parties. If they were, they might, on that ground alone, be incompetent as witnesses, and the declarations of any one of them would be evidence against the city. They are then not incompetent on the ground of being parties.

Nor are they, in our opinion, incompetent in consequence of interest in the event of the suit.

Though justice and policy forbid that witnesses should generally be permitted to testify in favor of their own interests, still the interdiction is not, and should not be universal. Both justice and policy require that in some peculiar cases, interested persons should be permitted to testify on the side of their...