Case 54 — Action by C. W. Sparks fob Himself and Others against J. R. Robinson, Sheriff of Mason County to Recover a CuHf tain Tax Collected by Appellee.

May 1.

#### Sparks v. Robinson.

appeal from mason circuit court.

Demurrer to Plaintiff’s Petition -Sustained and He Appeals.

Affirmed.

Taxation — Plaintiff Suing for Others — Trifling Interest — Dia fective Petition.

Held: 1. One may not sue on his own behalf, and -that of -other taxpayers, to recover taxes collected, where his interest is -only three cents.

2. A petition to recover taxes collected, as in excess of the limit of fifty cents on the $100 authorized ¡by Const., .section 15¡7, should negative the existence of indebtedness contracted before the adoption of the Constitution, in which case the section authorizes a greater tax to extinguish it.

WINFIELD BUCKLER and W. S. PRYOR, for appellant.

POINTS AND AUTHORITIES.

1. The Mason fiscal court in making a levy of sixty-tw.o cents of May 27, 1902, exceeded its jurisdiction by three cents, the fifty-cent rate limit prescribed both by the Constitution and section 1839 of the statutes.

2. Now, more than .six years have-elapsed -sinpe the adoption of the Constitution, and a local act of the Legislature *454adopted April 29, 1890, authorizing Mason county to levy a tax in aid of common schools in said! county bei-ngl inconsistent with the Constitution, ceased on September 28, 1897, and the Legislature, hy section 1840, Kentucky -Statutes, was constitutionally ■ powerless to extend it beyond that time.

3. Mo-re -than s-ix years have elapsed from the adoption of the Constitution till, the levy in question was made, and the levy of this sohoo-1 tax being made hy virtue- of this local and special act, it is necessarily in' conflict with -the constitutional requirements, that all levies for taxes shall he made hy a general law; therefore said local act is expressly repealed by section 1 of schedule of the Constitution; it! follows there fore, that the whole levy of fifteen cents for school fund is void.

AUTHORITIES CITED.

B. & N. v. Pendleton Cq., 96 Ky., 439; Same v. Commonwealth, 89 Ky., 541; Constitution, sees. 59, 61, 171, 181, 157; Kentucky Statutes, secs. 1839,, 1840; -Sutherland on Statutory Construction; secs. 292, 300, 3-26, 365, 380-, 391, 393, 435; Cooley on Taxation, secs. 101, 276, 329; Am. & Eng. Ency., vol-s. 23, 406, 487 (1st ad.); Morgan Dep. Blank v. Johnson, 22 Ky. Law Rep., 211; Joyce, etc., v. Jeff. Co. F. Gt., 21 Ky. Law Rep., 201; McTigue v. Com., 99 Ky., 70; Pearce,v. Mason Co., etc., 9® Ky., 364; City of Louisville v. Kunitz, 104 Ky. (Law Rep., 589; Am. & Eng. Ency. of Law, vols. 3, 696, (1st ed.); State *ex ret.*Hill v. Wabash R. R. Co., 70 -S. W. Rep., 136; Combs v.-Letcher Co., 21 Ky. Law Rep., 1057; City of San Antonio v. Raley, 32 S'. W. Rep., 180; Desly on Taxation, vol. 1, 206; French v. Newham, 74 N. C., 557; Pegram v. Caseland, 64 N. C., 557; Arnold v. Hawkins, 8 S. W. Rep., 718; Black v. MoConigle, 15 S-. W. Rep., G18; Hickman College, v. Trustee C. C. S. Dis. A., etc., 23 Ky. Law Rep., 1273; Acts 1889-90, vol. 2; Davis v. Clark, 18 (Pa.) Rep., 667; City of Covington v. Dis. of Highland, 24 Ky. Law Rep., 435; Commonwealth v. Grinstead, 21 Ky. Law Rep-., 1446; Sutherland on Statutory Construction, see. 454; Varney v. Justice,, 86 Ky., 600; Third or Old Constitution Schedule, sec. 1; Present or Nelw Constitution Schedule, sec. 1; Levi v. City -of Louisville, 97 Ky., 401; Campbell Co., use, etc. v. N. & C. Bridge Co., 23! Ky. Law Rep., 2059.

THOMAS R. PHISTER. attorney por appeiuee.

POINTS AND AUTHORITIES.

Constitutional Law. Construction of Statutes. Neither the Constitution nor any general statute has repealed the la-*455cal act of April 29, 1890, as to school taxes. Long v. 'City of Louisville, 97 Ky., 369; Pearce v. Mason County, 99 Ky., 357; Cooley on Constitutional Limitations', ip. 77; O’Ma-honey v. Bullock, 97 Ky., 1890; Long v. City of Louisville, 17 Ky. Law Rep., 253; .Sutherland ori Statutory Constructions, sec. 157; Com. v. Weller, 14 Bush, 224; Com. v. Cain, 14 Bush, 533; M,urphy v. City of Louisville, decided February 10, 1903; Posey v. Board of Trustees, 19 Ky. Law Rep., 466; Roberts v. Clay City, 102 Ky., 88; Hickman College v. Trustees* District A., 23 Ky. Law Rep., 1273; Chambers v. Adair, 23 Ky. Law Rep., 373; Board of Education v. L. H. & St. L. Ry. Co., 23 Ky. Law Rep., 376; secs'. 1839, 4363, 4374, 4412, 4419, 4432, 4433, 1840, Kentucky Statutes; Acts 1889-1890, vol. 2, p. 1545; «ecs. 59, 144, 171, 181, of the Constitution; Joyce v. Jefferson County, &c., 21 Ky. Law Rep., 201; Campbell Co. y. N. *&*C. B. Co., 23 Ky. Law Rep., 2059; City of Covington V. District of Highlands, 24 Ky. Law Rep., 433.

FRANK P. O’DONNELL, attorney roe appellee.

.SYNOPSIS’ OF ARGUMENT.

The action being based on section 157 of the Constitution, the petition should have negatived an exception forming a part of the very clause creating the alleged liability. Constitution of Kentucky, sec. 157; Nichols v. Sennett, 78 Ky., 631; Louisville & Nashville R. R. Co. v. Belcher, 89 Ky., 197; Com. v. MeClanahan, 2d Met., 10; Bliss on Code Pleading, p. 102; Newmain’s Pleading, 398.

Even if the taxes ware illegal, yet if voluntarily paid, they can not he recovered hack. Cooley on Taxation, *p. 566; City of Clarksville v. Montgomery County, 62 S. W. R., 33; Am. & Eng. Bncy. of Law (2d ed.), vol. 22, p. 609; Manufacturing Co. v. Newell, 15 R. I., 233, 2d Atl., 766; Whaley v. Commonwealth, 61 S. W. R., 36; Anderson v. City of Louisville, &c,, 79 Ky., 336; German Security Bank v. Coulter, Auditor, 66 B. W. R., 426; Feeheimer v. City of Louisville, 84 Ky., 308.

The act of 1890 is not inconsistent with the* 'Constitution; was not repealed by subsequent legislation; but was, in effect, re-enacted by section 1840, Kentucky Statutes. Constitution of Kentucky, sec. 157; Com. v. Louisville *&*Nashville R. R. Co., 48 S. W. R., 1092; Pearce v. Mason County, 99 Ky., 357; Kentucky Statutes, see. 1840; O’Mahoney v. Bullock, 97 Ky., 781.

*456CASES DISTINGUISHED.

Arnold v. Hawkins, 8 S. W. R., 720; Black v. McGonigle, 15 ■S. W. R., 614; State v. Burgess, 47 -S'. W. R., 500.

ADDITIONAL CITATIONS IN SUPPLEMENTAL BRIEF.

Johnson v. Cavanaugh, 21 R., 1246; Com. v. L. *&*N. R. R. •Co., 20 R., 1127; Kentucky Statutes, sec. 1296 (ed. of 1887).

REPLY BRIEF BY ATTORNEYS FOR APPELLANT.

POINTS AND AUTHORITIES.

1. Both chap. 260 of acts 1891-92-93, p. ,1413 on “common schools,” and chap. 101 on fiscal courts, p. 268, supersedes local act.

2. The General Assembly, under section ,51 of Constitution, could >not include “common schools” in an act whose title is “fiscal courts,” for they are distinct subjects.

3. Conceding the local act is not repealed this ‘tax was levied under chap. 101, acts 1891-92-93, p. 268, creating fiscal courts, and is subject to the fifty cent limit in section 7, fixing the rate in all the counties.

4. To continue in force the local act would' subject appellants to double taxation’; this the General Assembly never intended.

5. Section 180 of Constitution, requires all acts of the General Assembly to specify distinctly the ‘purpose for which taxes shall he limited, and section 1840, of Kentucky Statutes does not mention schools, distinctly or at all.

AUTHORITIES CITED.

Commonwealth v. Porter, 24 Ky. Law Rep., 364; Aqts 1891-9-2-93, p. 1413; O’Miahoney v. Bullock, etc., 97 Ky., 781; Mayor and Council v. Wilson, *103*Ky., 326; Cooley on Taxation, 2d ed., 329; Am. *&*Eng. Bncy. of Law, vol. 23, 1st ed., 487; Joyce v. Jefferson Co., 106 Ky., 621; Maget v. Plummer, 107 Ky., 43; [Sutherland's Statutory Construction, secs. 118, 120, 154, 156; Hick-man v. Trustees, 23 Ky. Law Rep., 1273; Livingston, etc. v. City of Paducah, 80 Ky., 6-58; Cooley on Taxation, 2d ed., 227.

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 *457collected 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 *458city, 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*459igation, 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 *460therein, 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., *4611209), 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.