Sparks v. Robinson

Opinion of the court by JUDGE O’REAR Affirming. Appellant, as a taxpayer of Mason county, brought this suit against appellee to recover, on his own behalf, and on behalf of all the taxpayers of the county, a certain tax — 457 — collected by appellee, as sheriff of Mason county, for the year 1902. At the April term, 1902, the fiscal court of Mason county laid the county levy at 62 cents on the $100, in the aggregate, apportioned as to objects as follows: Maysville & Big Sandy R. R. fund............ 9 cents School fund ................................. 15 cents Free turnpike fund........................... 25 cents Infirmary fund .............................. 6 cents General claim fund............... 7 cents 62 cents It is conceded that the debt on account of the Maysville & Big Sandy Railroad was incurred prior to the present Constitution, and that all the items embraced in the budget, except that of 15 cents for school purposes, are legal. The property assessed for taxation in the county for that year was $9,716,217. It seems to be conceded in the petition that all of the levy of 62 cents, except 3 cents thereof, was legal, on the theory that the fiscal court had the right to levy a tax not exceeding 50 cents for county governmental purposes, aside from providing a sinking fund to meet the railroad debt. Thus, it was presented, 50 cents for general county purposes and 9 cents for the railroad debt produced 59 cents of valid taxation. It was then claimed in the suit that the excess of 3 cents was invalid, because being in excess of the maximum rate allowed by section 157 of the Constitution, viz: “The tax rate of cities, towns, counties, taxing districts and other municipaltes, for other than school purposes, shall not exceed the following rates upon the value of the taxable property, viz.: . . . and for counties and taxing districts fifty cents on the one hundred dollars; unless it should be necessary to enable such — 458 — city, town, county or taxing district to pay the interest on, and provide a sinking fund for, the extinction of indebtedness contracted before the adoption of this Constitution.” It was alleged that the three 'cents of excessive levy above named produced, and there was collected from the taxpayers of the county by appellee by reason of it, the sum of' $2,914.86. It was to recover this sum, because of the facts stated, that this suit was brought. A general demurrer to the petition was sustained. On the appeal, appellant has taken a materially different position in argument. He now contends that the whole of the 15 cents levy for school purposes was invalid, and was in violation of the Constitution. Thus it will be seen that appellant, single-handed, attacks the validity of a tax levy, made and collected, to be applied, and possibly already applied, in aid of the common-school system of the county; the total sum involved for that year being not less than $14,574.32. Appellant says that he for that year owned property valued for assessment at $20. His share of, or interest, on his own showing,, in, the fund involved, is not exceeding 3 cents, in any évent. The right of one taxpayer to sue for all others similarly situated, to redress a grievance common to the class to which he is a member, is clearly recognized. Section 25, Civ. Code Prac.; Hendrix v. Money, 1 Bush, 306; L. & O. T. R. Co. v. Ballard, 2 Metc., 165; Whaley v. Com. (110 Ky., 154, 23 R., 1292), 61 S. W., 35; Robinson v. Robinson’s Trustee, 11 Bush, 174; McCann v. City of Louisville (23 R., 558), 63 S. W., 446. But the one essaying to act for all must be a fair representative of the class, and this he must show to be entitled to claim the right. It was not enough that he should belong to the class whose alleged grievances or property rights he presumes to involve in lit — 459 — igation, but he must .show such an interest that the court may see that his motive and financial concern are probably in harmony with at least the average of the body. It will be observed that the Code (section 25) 'makes this right' permissive, which we understand to be in respect of the above rule, and to involve the exercise of the sound judicial discretion of the chancellor. If this were not so, then one with but slight interest in fact, but actuated by some other motive not common to, nor in keeping with, the welfare of those he would represent, .could involve their property in a litigation to be conducted by such skill and labor as he would feel warranted to engage in his own small affair. This would not be allowed. Or, e. g., appellant, with an interest of 3 cents only, volunteers to litigate for property holders whose possessions are over $9,000,000, and whose direct pecuniary concern is nearly $15,000. He proposes to choose for them their lawyer, set the gauge of their litigation, control in a large measure the conduct of this to-be enormous suit, and have charged to them the whole of the costs (for appellant’s proportion of the costs could not be measured in any denomination of money known to the law). This is a case to which certainly the maxim, “The law does not notice trifling matters” {“de minimis non, curat leso”), applies. His interest is not large enough for the law to take notice of. One so .situated will not be allowed to pester the courts and people by raising vexatious litigations over supposed constitutional infractions, for academical exploitation at other people’s expense, v/ But there is at least one other reason, appearing on the face of the petition, and independent of the merits of the case, why the demurrer was properly sustained. Under section 157 of the Constitution, the tax rate of a county can not exceed 50 cents on the $100 of the taxable property — 460 — therein, except for two purposes: (1) If it shall be necessary to exceed that sum in order to pay an indebtedness contracted before the Constitution was adopted; or (2) unless it be for school purposes. As to these two objects there is no constitutional limitation. But appellant contends there was not authority granted by general law for a county to make provision for taxation in aid of the common schools therein, and therefore the fiscal court had not the power to levy any tax for that purpose. By an act approved April 29, 1890 (vol. 2, Acts 1889-90, p. 1545, c. 1107), the people of Mason county were authorized to provide by a majority vote, at an election to be held for that purpose, for the levying annually of not exceeding 25 cents on the $100 of the taxable property in the county, in aid of the common schools. Section 6 of the act is: “The taxes, hereinbefore provided for, shall be levied at the same time, and collected and accounted for in the same manner and by the same officers as the county levy is now made and collected by law.” The provisions of the act were duly adopted by the necessary' vote. It is asserted in argument by appellant that the local act of April 29, 1890, was repealed by the adoption of the Constitution September 2-8, 1891. The petition does not state whether Mason county had incurred an indebtedness under the act of 1890 which had not been discharged. Upon that point the petition is silent. In Campbell Co., Use, etc., v. N. & C. Bridge Co., 112 Ky., 659 (23 R., 2056), 66 S. W., 526, concerning the repeal of a local taxing act by the adoption of the Constitution, and the general laws thereunder on the subject of revenue and taxation, this court held that, if there existed obligations of indebtedness by the local taxing district, the local act. would continue in full force till they were discharged. In the case of Richardson v. Boske, Sheriff (111 Ky., 893, 23 R., — 461 — 1209), 64 S. W., 919 (at page 922), it was also held: “We do not, however, decide that the enactment of the general statute relative to public roads and passways, which constituted chapter 110 of the Kentucky Statutes of 1899, in any wise affects the liability of district and separate portions of the county for the building and construction of roads under special acts.” The failure of the petition to negative the existence of obligations of indebtedness contracted under the act renders it bad on demurrer. The other questions presented are not decided. The judgment sustaining the demurrer and dismissing the petition is affirmed.