Norman v. Boaz

• Decision Date: 12 May 1887
• Citation: 85 Ky. 557,4 S.W. 316
• Parties: NORMAN and others v. BOAZ and others. WATSON and others v. SAME.
• Court: Kentucky Court of Appeals

4 S.W. 316

85 Ky. 557

NORMAN and others v. BOAZ and others.

WATSON and others v. SAME.

Court of Appeals of Kentucky.

May 12, 1887

Appeal from circuit court, Fulton county.

Robertson Smith & Robbins, for appellants.

C. L Bandle, for appellees.

LEWIS J.

By an act of the general assembly entitled "An act to incorporate 'Carr Institute in Fulton County,"' approved March 9, 1882, and an amendatory act approved March 17, 1884, the college therein mentioned was declared a common school, and as such entitled to draw from the common-school fund of the state each year all the money due the school-district in which it is situated; and, for the purpose of erecting a suitable building, it was provided that the question of a subscription of $5,000 by the district, to be paid for by taxation, should be submitted to the qualified white voters of the district on the first Saturday in May 1884, and, in the event of the votes then cast being in favor of such subscription, the trustees of the college were to be authorized to annually, by some suitable person appointed by them, make an assessment of the taxable property in such district, and to levy a tax not to exceed 30 cents on the $100 of property subject to taxation, and a poll-tax of not exceeding $2 on each white tithe, for the purpose of enabling them to pay one-fifth of the subscription and accrued interest; the collector of the tax to be appointed by the trustees. Under these acts an attempt was made, at the time indicated, to hold an election upon the question of the subscription mentioned, and also of nine trustees of the district, as required thereby, when it is claimed the proposition for the subscription was carried by a majority of the votes cast, and the candidates were duly elected trustees. Afterwards, appellees, assuming authority to act as such trustees, caused an assessment of the taxable property of the district to be made by a person appointed by them for that purpose, made a levy of $1,500 tax on the district for the year 1885, and appointed appellee Boaz to collect the taxes so laid. These two actions, consolidated and tried together, were instituted in July, 1885, by residents and tax-payers of the district, for the purpose of obtaining an injunction to perpetually restrain appellees, claiming to be trustees, from further proceeding to levy and Boaz from collecting said tax, and from distraining and selling their property therefor. And the lower court having dissolved the temporary injunction, and dismissed both the actions, the plaintiffs prosecute this appeal.

Before considering the grounds upon which the plaintiffs seek relief, we will notice the position assumed by counsel for appellee, that an injunction will not lie in cases of this sort. Whatever may be the rule in other states, as said in Gates v. Barrett, 79 Ky. 295, "the right to have an injunction to restrain the collection of an illegal tax has been so long recognized and acted upon in this state that it is unnecessary to stop to inquire upon what ground that jurisdiction is exercised by courts of equity." However, these are not cases in which it is sought to restrain the collection of taxes alleged to be illegal merely by reason of irregularity or misuse of authority by officers duly elected and qualified to act; but the remedy is against persons who, it is stated, are attempting to cause an assessment of property, lay taxes, and cause the collection thereof, without being officers with any authority whatever.

The first ground upon which plaintiffs ask relief is that the two acts are unconstitutional, because the property of colored persons residing in the district is made subject to the tax while they are neither allowed to vote upon the question of the subscription, nor to participate in the benefits derived from the expenditure of the money raised by the taxation provided for. As the plaintiffs are white persons, and consequently not at all affected by the alleged discrimination againt colored persons of the district, the court, according to a well-settled and conservative rule, will not listen to the objection made by them to the constitutionality of the two acts on that account. But we do not think, according to a proper and reasonable construction of the acts, the property in the district of colored persons is made subject to taxation to pay the subscription authorized thereby; and, as only the property of white persons can be subject, the acts, according to the decision of this court in Marshall v. Donovan, 10 Bush, 681, cannot be regarded as in violation of the constitution of the United States. In that case the same objection was made to the statute as is made here; and this court, after a full consideration and...