McLean County Precinct v. Deposit Bank of Owensboro

• Court: Kentucky Court of Appeals
• Writing for the Court: Pryor
• Citation: McLean County Precinct v. Deposit Bank of Owensboro, 81 Ky. 254, 5 Ky. Law Rep. 97 (Ky. Ct. App. 1883)
• Decision Date: 14 June 1883
• Parties: McLean County Precinct v. Deposit Bank of Owensboro.

81 Ky. 254

McLean County Precinct v. Deposit Bank of Owensboro.

Court of Appeals of Kentucky.

June 14, 1883.

APPEAL FROM M'LEAN CIRCUIT COURT.

CHARLES EAVES, M. C. GIVENS, AND C. W. COOK FOR APPELLANT.

SWEENEY & SON FOR APPELLEE.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

The charter of the Owensboro and Russellville Railroad Company was so amended as to authorize the voters of any precinct of any county through which the road might be located to vote a tax, in the way of a subscription or by a majority petition, upon themselves in aid of its construction, and the county judge was required "to levy a tax, when voted, on the taxable property of the precinct to meet the interest and a reasonable amount of the principal annually."

By the third section of an amendment to the charter, approved the 14th of March, 1869, the county judge, when the precinct had made a subscription to the capital stock of the company, was required "to appoint a collector of said tax so levied for such precinct," and he shall appoint such person or persons as the justices of said precinct may recommend; and if the justices, when notified, neglect to recommend, the presiding judge shall appoint some discreet person residing in the precinct as collector aforesaid, taking bond from him for the discharge of his duties, &c.

The Livermore precinct No. 3, of McLean county, on a petition of a majority of its voters, subscribed $50,000 of stock, and issued its bonds to the railroad company in payment. The Company sold the bonds, and the road, it seems, was never completed. The appellees, holding a number of the bonds, and being unable, as is alleged, to recover in an ordinary action, instituted the present action in equity, seeking the aid of the chancellor upon the ground that the county judge had, in good faith, endeavored to find some discreet person residing in said district to act as collector of the taxes, and could find no one willing to accept the position, or discharge the duties of collector, and further averring that no one in the precinct would undertake to discharge the duties of such an office. The plaintiff asks that the tax-payers be required to pay the respective sums due by them into court, or to some one appointed by the court as receiver or collector, alleging that it was a trust fund held for the discharge of the bonds and coupons issued by the precinct. A rule was issued against the tax-payers, requiring them to pay the money or taxes owing by them into court. They responded to the rule, and also filed demurrers, general and special, to the proceeding. Their demurrers were overruled, and the response filed deemed insufficient, the rule made absolute, and the tax-payers (the appellants) required to pay the money into court, and upon their failure to do so, executions were directed to be issued, and a receiver appointed and invested by the judgment with all the power and authority of a tax-collector, as conferred by the act and its amendments authorizing such an appointment by the county judge, &c.

The real question presented by the record, and the only one necessary to be determined, is, had the chancellor the power to collect the taxes by his receiver or the tax-collector appointed by him, when it appeared that the county judge could find no one in the precinct willing to accept the office?

That the remedy afforded by the act under which the vote was taken and the stock subscribed was ample and complete for the collection of the taxes imposed for the payment of the subscription, if the county judge could have found some one within the precinct willing to make the collection, is not controverted; but the chancellor below, seeing that the appellee had been prevented from pursuing that remedy, has exercised the power of appointing a collector, and investing that officer with the power of collecting the taxes. That the remedy had been suspended by reason of the failure or refusal of those living within the precinct to accept the office, or had been temporarily obstructed by reason of a defect in the law under which the collection was to be made, did not enlarge the jurisdiction of the chancellor, or confer upon him the exercise of such an extraordinary power.

In the case of Heine v. Levee Commissioners, 19th Wallace, the court said: "But the hardship of the case, and the failure of the mode of procedure established by law, is not sufficient to justify a court of equity to depart from all precedent, and assume an unregulated power of administering abstract justice at the expense of well settled principles." It may be said in this case, as in the case cited, if the jurisdiction of the chancellor is sustained at all, it must be on the broad ground that, because the plaintiff finds himself unable to collect his debt by the proceedings given him by the act, it is the duty of a court of equity to devise some mode by which it can be done. It will be conceded that it is not one of the inherent powers of any judicial tribunal, whether state or federal, to levy or collect taxes, and...