Meriwether v. Judge of Muhlenburg Court

Meriwether, the plaintiff in error, obtained a judgment in the court below against the county of Muhlenburg, in the state of Kentucky, for the amount of certain unpaid coupons of bonds, issued by it in payment of a subscription to the capital stock of the Elizabethtown & Paducah Railroad Company. Execution having been returned 'no property found to satisfy the same or any part thereof,' and the county court of the county having refused to levy a tax sufficient to pay the judgment, Meriwether filed the petition in this case against the judge of that court, praying for a mandamus compelling the levy and collection of such tax. The plaintiff bases his right to relief upon the ninth section of an act of the general assembly of Kentucky, approved February 24, 1868, amending the charter of the Elizabethtown & Paducah Railroad Company. That section provides 'that in case any county, city, town, or election district shall subscribe to the capital stock of said Elizabethtown & Paducah Railroad Company, under the provisions of this act, and issue bonds for the payment of such subscription, it shall be the duty of the county court of such county, the city council of such city, and the trustees of such town, to cause to be levied and collected a tax sufficient to pay the semi-annual interest on the bonds issued and the cost of collecting such tax, and paying the interest, on all the real estate and personal property in said county, city, or town, subject to taxation under the revenue laws of the state, including the amounts owned by residents of such county, city, or town, or election districts, which ought to be given in under the equalization laws.' Sess. Acts 1867-68, p. 622.

This proceeding having been instituted against the judge of the county court alone, a demurrer to the petition, on the ground of defect of parties, raised the objection that, within the meaning of the foregoing statute, the justices of the peace of the county must be a part of the court when making a levy for the purpose asked by the plaintiff. The court below, being of opinion that the point was well taken, sustained the demurrer. An amended petition was filed, stating, among other facts, that there were no justices of the peace of the county; that the justices elected from time to time, and who had qualified, resigned their positions in order that there might be no officers in existence who could, under the theory of the defendant, levy the required tax. A demurrer to the amended petition having been sustained, and the plaintiff having elected not to amend further, the action was dismissed.

W. O. Dodd, J. M. Brown, A. P. Humphrey, and G. M. Davie, for plaintiff in error.

T. W. Brown, for defendant in error.

HARLAN, J.