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damages thereto from defendant's negligence, excluded the 50-acre tract. The patentee conthat persons having liens on the boat were veyed the 300 acres patented, excluding the 50made coplaintiffs is not ground for reversal. acre tract, and his grantee conveyed to plaintiff
3. In an action for damages from a colli- without excluding it. Held that, though the sion between boats on a navigable river, de deed of the patentee assumed to convey 300 fendant having run into plaintiff's boat, which acres, yet, as the 50 acres were expressly exwas anchored near shore, the exclusion of evi- cluded, no title passed to them. dence offered by defendant of the rules by which boats are controlled when running upon
Appeal from circuit court, Johnson county. navigable streams is not ground for reversal. "Not to be officially reported.” Appral from circuit court, Carroll county.
Action by Jay H. Northup and another "Not to be officially reported."
against G. W. Blanton and others for possesAction by William McCracken and others
sion of land. Isaac Dillon and others, claimagainst the United States Mail Line Com
ing the land as heirs of plaintiff's grantor, pany. There was a judgment for plaintiff
intervened. From a judgment for the interMcCracken, and defendant appeals. Af
veners, plaintiffs appeal. Affirmed. firmed.
Wallace & Lackey, for appellants. ThomGaunt & Downs and J. A. Donaldson, for
as H. Hines, for appellees. appellant. Winslow & Winslow, for appellee.
GUFFY, J. In 1852 Cabel May obtained a
patent from the commonwealth of Kentucky PRYOR, C.J. The law and facts in this case were submitted to the court, and a judgment
for 50 acres of land in Johnson county, and rendered for the plaintiff for $120. The action
in 1855 he obtained another patent for 300
acres in same county, the boundary of which is against the United States Mail Line Com
included the 50 acres, but expressly excludpany for negligently running its boat into the
ing or exempting the 50-acre tract. In 1861 barge of the appellee, anchored in the Ken
said May conveyed the 300 acres to Potter, tucky river, near the shore, and materially
excluding therefrom the 50 acres aforesaid. injuring it. The court, after hearing the evi
Afterwards Potter executed to one Williams dence, rendered the judgment complained of. The facts upon which the negligence was es
a power of attorney authorizing him to sell tablished and the judgment based are set
and convey the said 300 acres, and Williams
conveyed the 300 acres, including the 50 forth in the finding by the trial judge, and, in our opinion, authorized the judgment; and
acres, to the appellants, Jay H. Northup and
Fredrick Prentice. Some time afterwards his judgment constituted such a separate find
appellees G. W. and J. M. Blanton were ing of both law and fact as contemplated by
about to procure a patent to issue to them the Code, and the objection on that ground is
for the said 50 acres, and were asserting a unavailing. Nor was the court below without jurisdiction. This is a plain common-law
claim thereto, and in 1890 appellants institut
ed suit against the Blantons, to enjoin and action for negligence, the appellee seeking a
restrain them from obtaining patent to the personal remedy only. Digby v. Iron Co., 8
land, as well as to enjoin them from entering Bush. 166; Stewart v. Harry, 3 Bush. 438.
said land and converting the timber to their Some objection was made on account of a
Blanton made defense, and denied apmisjoinder of parties to the action, those hav
pellants' title to the land. During the pending liens upon the injured boat being made plaintiffs. If this was error, it did not affect
ency of the suit, Isaac Dillon and other
heirs of Cabel May were, by appropriate prothe right of recovery on the part of the real owner, and certainly placed the defendant in
ceedings, made parties to the suit, and claima position where no other claim could be as
ed the land as heirs of said May. The court, serted.
upon final hearing, adjudged the land to said The rules by which boats are controlled
Dillon and others, as heirs of Cabel May, when running upon navigable streams were
and from that judgment this appeal is proseoffered to be proven by the officers of the
cuted. Appellants' contention is that the boat committing the injury, and the testi
whole land was conveyed by May to Potter, mony excluded; but, if admitted, it could not
or should have been so conveyed. There is have affected the question at issue. The sole
also some discrepancy claimed as to the loca
tion of the two tracts of land, but it is eviquestion before the court was, did the injury result from the negligence of the defendant's
dent from the proof and papers in the cause agents? And, the testimony authorizing the
that the 50 acres is inside the boundary of Judgment, it will not be disturbed. Affirmed.
the 300 acres. It is also true that, excluding the 50 acres, Potter did not get 300 acres, and it also appears that May never listed for
taxation any land in Johnson county after NORTHUP et al. v. BLANTON et al. (DILLON et al., Interveners).
his sale to Potter. Yet, as he expressly ex
cluded the 50 acres from the conveyance to (Court of Appeals of Kentucky. Nov. 27,
Potter, and no proof was introduced that 1895.)
he in fact sold the entire boundary to Potter, DEED-QUANTITY OF LAND CONVEYED-BOUND
it follows that Potter had no title to the 50 ARIES. A patent for 300 acres of land, the
acres, and, not having title thereto, he could boundary of which included a 50-acre tract al- not convey any title to these appellants, ready patented to the same person, expressly Whether he has any claim against the
estate of May on account of a deficiency in ordinance embraced all vehicles owned by the quantity of land embraced in the con- persons within or without the corporate limveyance is a question which can only be de- its of the city, making use of the streets for cided when presented. It may be true that whatsoever purpose, except farmers marketing May only had a warrant for 250 acres of produce of their farms; and also there is exland, yet he obtained a patent for 300 acres. cepted from its provisions vehicles which may It is also contended that he had a warrant be kept only as a reserve to take the place of for 50 acres, and had same surveyed, and a similar vehicle temporarily out of repair, patent issued to him for the 50 acres before and not in use. The provisions of the ordithe 300 acres was patented to him. The 50 nance embrace all vehicles except as above acres having been already patented to May, stated, regardless as to whether they are used appellees Blanton had no right to have the or let for hire. Section 181 of the constitusame patented to them. It seems to us that tion is as follows: "The general assembly the judgment of the court below is in accord- shall not impose taxes for the purposes of any ance with the law and facts, and it is there- county, city, town or other municipal corporafore affirmed.
tion, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes. The
general assembly may by general laws only, CITY OF COVINGTON v. WOODS et al.
provide for the payment of license fees on (Court of Appeals of Kentucky. Nov. 30, franchises, stock used for breeding purposes, 1895.)
the various trades, occupations and profesCONSTITUTIONAL LAW-TAX ON OCCUPATIONS- sions, or a special or excise tax; and may, VALIDITY.
by general laws, delegate the power to coun1. Const. $ 181, provides that the general assembly may confer on municipal corporations
ties, towns, cities, and other municipal corthe right to collect taxes, and may delegate to porations, to impose and collect license fees thein the power to impose license fees on oc- on stock used for breeding purposes, on francupations. St. $ 3058, subd. 2, which is headed,
chises, trades, occupations and professions." "License Tax on Occupations,” provides that cities of the second class may license, tax, and
It is by virtue of the foregoing section of the regulate all vehicles used or let for hire. Held, constitution that the general assembly can that the tax, being in fact a tax on the occupa- delegate to general councils of cities the powtion of the person owning the vehicle, and not on the vehicle itself, is valid, though an ad
er to pass ordinances imposing tax, license valorem tax is also imposed on vehicles in gen
fees, etc. The general assembly authorized eral.
the general council of such cities to levy and 2. Under St. $ 3058, subd. 2, providing that
collect an ad valorem tax on the property cities of the second class may license, tax, and regulate cabs, wagons, drays, etc., "and all oth
subject to taxation within the territorial limer vehicles used or let for hire,” an ordinance its of the city, and by the terms of an orditaxing vehicles plying the streets, regardless of nance an ad valorem tax is levied and collectwhether they are used or let for hire, is invalid as to those not so used.
ed on such property in the city of Covington,
including the vehicles described in the ordiAppeal from circuit court, Kenton county.
nances. The constitution requires that taxes “To be officially reported.”
shall be uniform upon all property subject to Petition by Thomas G. Woods and others
taxation within the territorial limits of the auagainst the city of Covington for an injunc
thority collecting them. While this is true, tion. From a decree for complainants, de
express authority is conferred upon the genfendant appeals. Reversed in part, and af
eral assembly to delegate to cities, etc., the firmed in part.
power to impose and collect "license fees on W. McD. Shaw, for appellant. D. A. Glenn, * * trades, occupations and professions.” for appellees.
Although an ad valorem tax is collected on
the vehicles described in the ordinance, still PAYNTER, J. Covington is a city of the the criticism cannot properly be made that second class. Section 3058, St. Ky., is part there is a want of uniformity, or that there of an act for the government of cities of the is double taxation, when the proper authorisecond class in this commonwealth, and ties impose and collect a license fee on such which, among other things, provides that the of it as may be used or let for hire. The ad general council of cities of that class shall valorem tax is on the property, and the lihave power by ordinance "to license, tax and cense fee is on the occupation of the owner. regulate * * * livery, board, feed and sale When the ordinance provides that a given stables, hansoms, cabs, hackney coaches, car- sum shall be paid as a license fee on a veriages, barouches, buggies, wagons, omni- hicle, it simply employs a method of fixing buses, carts, drays, job wagons, and all other the amount of license fee one shall pay, by vehicles used or let for hire.
This the number and character of his vehicles used under subdivision 2 of the section, with the or let for hire. It is in fact a tax on the ocheading, "License Tax on Occupation," etc. cupation of the party owning or plying the The general council of the city of Covington, vehicles in the city, though technically it may by ordinance, seeks to compel owners of ve- appear to be a tax on the vehicles. In the hicles plying the streets of the city to pay li- light of the constitutional provision, we must cense fees therefor. The provisions of the hold that the general assembly so intended it
If the gen
to be, and that it is a tax on the occupation of the owner. It follows from this conclusion
BURCHETT v. HERALD et al. that the general assembly had the authority
(Court of Appeals of Kentucky. Nov. 30, to and did delegate to the general councils of
1895.) the cities of the second class the power to im
JUDGMENT BY DEFAULT-PROOF OF DAMAGES. pose and collect the license fees. The gen
Civ. Code, $ 126, provides, in substance, eral council must have concluded that the that allegations concerning value arising under authority had been delegated by the general
a contract, or the amount of damages claimed
or charged to have been sustained, in an action assembly to it to impose and collect of the
sounding in damages, need not be proven, if owners of vehicles, regardless of the use to accompanied by an express promise to pay, or by which their vehicles were put, license fees.
a statement of facts showing an implied promThe act delegated the power to license, tax,
ise to pay, such value or damage, and that in
all other cases proof must be heard, to authorand regulate "livery, board, feed and sale
ize a verdict. Held that, in an action to recovstables, hansoms, cabs, hackney coaches, car- er land, where the petition alleged that defendriages, barouches, buggies, wagons, omni
ant was in the unlawful possession, and that
he unlawfully and without right detained posbuses, carts, drays, job wagons, and all other
session from plaintiffs, “to their great damage, vehicles, used or let for hire.” The plain in the sum of $100," it was error to render words of the statute are decisive of the ques
judgment by default for the amount of damages tion as to the kind of vehicles for which li
claimed, without proof. cense fees were to be imposed and collected. Appeal from circuit court, Floyd county. The statute itself furnishes the means of its "To be officially reported." own exposition, and the intent of the act Action by J. N. Herald and others against clearly appears from reading it.
James W. Burchett to recover land and dameral assembly had intended to have delegated ages. From a judgment by default for the the power to the general councils of cities of amount of damages claimed, and awarding the second class to collect license fees on all a writ of possession, defendant appeals. Repersons plying vehicles on the streets, the versed. qualifying words, "used or let for hire," would
James Goble, for appellant. Walter S. not have been used. It would have been
Harkins, for appellees. easy for the general assembly to have said all vehicles plying the streets, without any GRACE, J. This suit was filed in the particular designation, had it not been the court below by the appellees, who are the purpose to limit the imposition of license fees children and heirs at law of J. W. Herald, to vehicles in certain use. The enumerated deceased, against appellant, seeking to revehicles are the kind which are usually "used cover a certain tract of land described in the or let for hire" in cities. To make manifest petition, which they say belonged to their and certain the kind of vehicles embraced, ancestor, and which came to them by inherthe act particularly named some, and used the itance, and of which they charge "that apgeneral words, “other vehicles,” to designate pellant is in the unlawful possession, and the balance of like character, but all of which that he unlawfully and without right detains must be "used or let for hire” to authorize the possession from appellees, to their great the general council to impose the license fees. damage, in the sum of one hundred dollars."
We conclude that the ordinance, in so far On the petition, summons was duly issued as it imposes license fees on vehicles used or and served, and, appellant failing to appear let for hire, is valid. In so far as it attempts and answer, a judgment was rendered by to impose license fees on vehicles not used or default (“the allegations of the petition being let for hire, it is invalid. The general assem- taken as true”) for the recovery of the land, bly did not delegate the power to the general as described, and also, without any inquest councils of the cities of the second class to by jury, or any evidence being heard by the impose license fees on vehicles not used or court, for $100 in damages, and a writ or let for hire; and, if the general assembly has possession was awarded. The sole question the constitutional right to grant such power presented by this appeal is whether, on the (and we do not decide the question, as it is face of this petition, and on the allegation not involved in this case), then the cities of made as to the damage, the court was authe second class could only exercise it after thorized to render judgment, without evireceiving such grant. It appears from the dence either to the court or to a jury, for petition that some of the plaintiffs ply their the amount claimed in damages. This quesvehicles for hire, and that others of them do tion has often been decided by this court in not so use them; but the petition does not the negative. This rule has been declared show the facts with reference to their several by the court under section 126, Civ. Code. conditions in this respect; therefore the case While this section is awkwardly expressed, is reversed, with directions that, if the par- at best, and sometimes, we notice, it is not ties desire to proceed further in the case, correctly quoted, yet when read correctly, the petition be amended so as to show the and understood, its meaning is that allegafacts. Upon doing so the court will dissolve tions concerning value arising under conor perpetuate the injunction as each party's tract, or the amount of damages claimed or rights may be made to appear as fixed by charged to have been sustained, in an action this opinion.
sounding in damages, need not be proven, if accompanied by an express promise to pay, respectively, during his life, with remainder or by a statement of facts showing an im- “to his descendants, if any, in fee," otherwise plied promise to pay, such value or damages. to a charitable institution. From a judgment In all other cases proof must be heard, to against them, plaintiffs appeal. Affirmed. authorize a verdict. An illustration of the
E. E. McKay, for appellants. P. B. & Upstatement of facts in reference to value, as
ton W. Muir, for appellee. raising an implied promise to pay, may be found in the usual action for goods sold and
GRACE, J. The questions presented by this delivered, charged to be at the special inter-appeal arise upon this clause of the will of est and request of defendant, and that they Mrs. Lucy Brewer, who in 1888 died testate, were reasonably worth the price charged.
domiciled in Nelson county, Ky., where her Here the law implies the promise to pay,
will was duly probated in 1889, after her and no evidence to court or jury is neces
death: “All the remainder of my estate of sary, to authorize a judgment for the amount
every kind whatsoever I give to William claimed. But in actions in trespass or tort,
Johnson, in trust, and the income or profits of -actions sounding in damages,-it is difficult
the same, or so much thereof as he may think to connect the same with any promise to
proper, to be applied to the support and pay, or with such a statement as that the
maintenance of Frederick Brewer, and any law will imply the promise to pay. The
family he may have, during his natural life, charge, throughout, is one not resting on
and at his death then to his descendants, if contract, express or implied, but in tort,
any, in fee, according to the laws of descent that the defendant is a wrongdoer from the
and distribution; but if he should die without beginning. In this suit nothing is stated to
descendants living at the time of his death, bring the case within the exception, where
then the property mentioned in this clause is allegations of damage may be taken as true,
to go to the Roman Catholic bishop of the and, by default, judgment be rendered with
city of Louisville, to be by him used for the out evidence before either court or jury.
benefit of the Roman Catholic charitable inThis view wili be found supported by the
stitutions in his diocese. Said trustee may cases of Daniel v. Judy, 14 B. Mon. 393; permit said Frederick to have possession of Mead v. Nevill, 2 Duv. 280; Slone v. Slone,
all said property, but subject to the control of 2 Metc. (Ky.) 339; Gould v. Bonds No. 2, 1
said trustee for the purpose aforesaid.” It Bush, 189; and by Mize v. Jackson's Adm'x
is alleged in the petition that plaintiff Bettie (Ky.) 32 S. W. 467 (recently decided). Fur- Tichenor was a niece of Lucy Brewer, and ther elaboration is unnecessary. Wherefore, that she is the mother of Frederick Brewer, it is adjudged that, in so far as the judg- the devisee mentioned; that the two infant ment appealed from is rendered for the $100 plaintiffs are the half-brother and half-sister in damages, the same is reversed, and this
of Frederick Brewer, being born of the same cause is remanded for further proceedings mother by her second marriage; that said consistent with this opinion,
Frederick Brewer is dead, having never been married, and, of course, leaving no descendants (no issue of his body) that could lawfully
take under the will, after his death. But TICHENOR et al. v. BREWER'S EX'R.
plaintiffs allege that she (being the mother of (Court of Appeals of Kentucky. Nov. 30, Frederick Brewer) and her two infant chil1895.)
dren born to her by a subsequent marriage, WILLS-CONSTRUCTION-DESCRIPTION OF DeviseES being the brother and sister of the half -CHARITABLE BEQUESTS-DESIGNATION
blood, are entitled to inherit this property unOF BENEFICIARY.
der the law of descent and distribution, and 1. Where a will devises to one a life estate, with remainder “to his descendants, if any,
that this property passed to them as the dein fee, according to the laws of descent and dis- scendants and heirs at law of said Frederick tribution," otherwise to a charitable institution,
Brewer, deceased. a mother and a brother and sister of the half
The property claimed is blood of the devisee cannot claim the remainder
a small personalty, and a tract of land of 18+ in fee as "descendants and heirs at law" of the acres in Nelson county. Plaintiff's confuse devisee.
their claim as descendants and heirs at law. 2. A devise to a Catholic bishop, “to be by him used for the Roman Catholic charitable in
While it may be that the same persons are stitutions in his diocese," sufficiently desig
often both the descendants and heirs at law nates the object and purpose of the devise. of an ancestor, yet it by no means follows
3. A devise to the "Roman Catholic bishop that the terms "descendants" and "heirs at of the city of Louisville" for a charitable use will sustain a devise to a Catholic bishop desig
law” mean always one and the same person. nated by act of incorporation as "Rt. Rev. Wm. In this case, where the whole estate of Lucy Geo. McCloskey, Roman Catholic Bishop of Brewer passed by her last will and testament, Louisville."
of course nothing, strictly speaking, could Appeal from circuit court, Nelson county. have descended in any event to any heir at "To be officially reported."
law of her. And as to Frederick Brewer, he Action by Bettie Tichenor and her two in- had only a life estate in any event, so that fant children against Lucy Brewer's executor no part of this property devised to him for for property devised by defendant's testator life by Mrs. Lucy Brewer could pass from in trust for plaintiffs' son and half-brother, him under the laws of descent to his heirs at law. His estate in this land being for life | Neither is there any uncertainty as to the only, there was no inheritable estate in him. object or purpose for which she makes this We must therefore look to the will of the tes- residuary devise: "To be held by him [the tatrix, Mrs. Brewer, to see what distribution Roman Catholic bishop of Louisville) for the she made of the remainder interest in this use of the Roman Catholic charitable instipart of her estate. By that will, as quoted, tutions in his diocese." Often, in this court, we see that this property is given, through a terms far more latitudinous and general trustee, to Frederick Brewer "for and during have been held sufficient designations of the his natural life,” and then “to his descend- objects of the testator's bounty to uphold ants, if any, in fee,” etc. And then the will and sustain devises. See Kenney v. Kenproceeds to say, "But if he dies without leav
ney's Ex'r, 86 Ky. 611, 6 S. W. 593; Attoring descendants living at the time of his
ney General v. Wallace, 7 B. Mon. 612; Ford death, then to go to the Roman Catholic v. Ford's Ex'r, 91 Ky. 573, 16 S. W. 451; bishop of the city of Louisville," etc. So
Givens V. Shouse, 5 Ky. Law Rep. The that it is quite clear that in this case 'descend- court below sustained a demurrer filed by the ants' is used in quite a distinct sense from defendants (William George McCloskey beheirs at law. And while the mother and the ing one of them) to the petition of plainbrother and sister of the half blood would
tiffs. The judgment is affirmed. (the father being dead) take by descent, as leirs at law of Frederick Brewer, any inheritable estate that he might have owned at his CITY OF PARIS v. WEBB, Judge. death, yet they cannot, by any latitude of
(Court of Appeals of Kentucky. Nov. 26, construction of this will be deemed the de
1895.) scendants of Frederick Brewer, to whom this
POLICE JUDGE--COMPENSATION. property is first limited after his death. So
In an action against a city to recover far from Bettie Tichenor being the descend- sala ry as police judge it appeared that before ant of Frederick Brewer, she is his mother,
appointment to such office an ordinance was
passed reducing the salary from $900 to $600; and he is her descendant. To say otherwise
that then, and for four months afterwards, is but to utterly ignore the meaning of the plaintiff was mayor of such city, and had actnal word "descendant” as defined by the best au
knowledge of such ordinance; that it was his thors. Mr. Webster says "descendant" means
duty to see that the ordinances were executed;
that he was appointed judge at the end of his "one who descends, as offspring, however re
term as mayor; and that such ordinance was motely, correlative to ancestor or ascend- not published until after such appointment. ant." Mr. Stormouth: “Any one proceed
Held, that plaintiff was not entitled to the high
er salary on the ground that the constitution ing from an ancestor; offspring." Rapalje
forbids a change in salary during the term, and and Lawrence's Law Dictionary says "de- that such ordinance was not in force when he scendant" means “issue of the body of the was appointed, because not published; since it person named, of every degree." Again, they
was his duty as mayor to see that it was pub
lished. say "it does not mean collateral relations." Mr. Bouvier says "descendant” means "those
Appeal from circuit court, Bourbon county. who have issued from an individual, including
"Not to be officially reported." his children, grandchildren, and their children,
Action by Charles Webb against the city to the remotest generation.” So that it can
of Paris to recover salary alleged to be due not possibly be that testator meant by this
plaintiff as police judge of such city. From term "descendant" of Frederick Brewer that
a judgment for plaintiff, defendant appeals. this property should on his death go to his
Reversed. mother and his brother and sister of the McMillan & Talbott, for appellant. J. Q. half blood, though they may have been his Ward and Emmet M. Dickson, for appellee. heirs at law; but she meant, as she said, that on his death without descendants living HAZELRIGG, J. The appellee was electat the time of his death, it should then go to ed police judge of the city of Paris, a city of the Roman Catholic bishop of the city of the fourth class, in November, 1893; but unLouisville. This we deem a sufficient descrip- der section 107 of the constitution his term of tion, and to mean the name under which de- office did not begin until September 1, 1894. fendant William George McCloskey has cho- Under the former charter of the city there sen to have himself designated by an act of was no such oflice as police judge, the mayor incorporation as the "Rt. Rev. Wm. Geo. being invested with both judicial and execuMcCloskey, Roman Catholic Bishop of Louis- tive powers. Unless, therefore, a remedy ville." The words used by the testatrix in should be provided by the council, there would making this devise over are, "to the Roman be no police judge of the city, or other judiCatholic bishop of the city of Louisville," thus cial officer thereof, from January to Septeminterpolating into the corporate name of the ber, 1894, when appellee might for the first bishop the words of the city." These words, time enter upon the discharge of his duties. however, do not in any wise make doubtful The council therefore provided by ordinance or uncertain the object of testatrix's bounty. for filling this office for the time mentioned, Such minor inaccuracies have often been held and on January 2, 1894, appointed the appelby this court as immaterial. See Cromie v. lee to the place. The question on this apLouisville Orphan Home Soc., 3 Bush, 365. peal is what salary this officer is entitled to