C., O. & S. W. R. R. v. Commonwealth ex rel. Keown

[319] Opinion op the Court by Judge Hobson — Reversing. This action was brought in the Ohio circuit court in the name of the Commonwealth, Ohio county, and C. P. Keown, as sheriff of Ohio county, against the Chesapeake-, Ohio & Southwestern Eailway Company, the Chicago, New Orleans & St. Louis Eailroad Company, and the Illinois Central Eailway Company, 'to recover the franchise tax of the Chesapeake, Ohio & Southwestern Eailway Company for the years 1896 and 1897. The circuit court gave judgment in favor of the plaintiffs for the taxes for both years, and the railway company appeals. The case is similar to the case of Illinois Central Railway Co. v. Comth. (this day decided), 128 Ky. 268, 108 S. W. 245, 32 Ky. L. R. 1112; that case involving the taxes due the State, and this involving the taxes due Ohio county. The suit followed the decision, of this court in the case of the Southern R. R. in Ky. v. Coulter, Auditor, 113 Ky. 657, 68 S. W. 873, 24 Ky. Law Rep. 203. It was held in that case that the Illinois Central Eailway Company, being in possession of the road, and making the report to the Auditor, was liable for the franchise tax for the year 1897. This was also held in the case involving the State taxes, this day decided. It was further held in that case that the Illinois Central Eailway Company was not responsible for the franchise tax of the Chesapeake, Ohio & Southwestern Eailway Company for the year 1896, based upon a report made by the general manager of that company before the Illinois Central took possession. Substantially all the questions raised by counsel in this ease were disposed of by the [320] opinion rendered in the ease referred to involving the taxes due the State. It was there held that the assessment was valid, and that the action was not barred by limitation. The action here was not brought under the act of 1890, but was authorized by the act under which the tax was levied. See Ky. Stats., 1903, section 4104. On the return of the case to the circuit court a judgment will be entered against the Illinois Central Railway Company for the amount of the tax for the year 1897, with interest from the filing of the petition. Judgment reversed, and cause remanded for a judgment against the Illinois Central Railroad Company, as above indicated. A judgment will be entered against the Chesapeake, Ohio & Southwestern Railway Company for the tax of the year 1896.