In interpreting the provision of the federal statute just quoted, this court has uniformly held that both carrier and passenger or shipper are bound by the rates, terms, and conditions found in the schedule prepared, publish use any portion of it, cannot, in view of the | authorities from this state and from other jurisdictions, be gainsaid. It was so held by this court in the cases of B. & S. W. R. R. Co. v. Hudson, 117 Ky. 995, 80 S. W. 454, 25 Ky. Law Rep. 2154, Southern Railway Co. v. Cas-ed, and filed as therein required, and that sell, 92 S. W. 281, 28 Ky. Law Rep. 1230, and I. C. R. R. Co. v. Williams, 147 Ky. 52, 143 S. W. 760. The same doctrine was enunciated by the Supreme Court of the United States in its opinion in the case of Mosher v. St. Louis, Iron Mountain & Southern Railway Co., 127 U. S. 390, 8 Sup. Ct. 1324, 32 L. Ed. 249. no agent of the carrier had a right, either intentionally or through mistake, to vary those terms, and that the carrier would not be bound if the agent attempted to do so. L. & N. R. R. Co. v. Coquillard Wagon Works, 147 Ky. 530, 144 S. W. 1080, and L. & N. R. R. Co. v. Allen, 152 Ky. 145, 153 S. W. 198. The question, in one form or another, has The tickets involved in the above-named | been before the Supreme Court of the United cases contained conditions similar to the ones | States in many cases, some of which are found in the ticket here involved. In each Atchison, Topeka & Santa Fé Ry. Co. v. of the cases the tickets called for an interstate trip, and in upholding the condition requiring a passenger to identify himself before any agent or conductor of the railroad company, the United States Supreme Court in the Mosher Case said: "The sixth condition, by which the ticket is to be void if the plaintiff does not sign his name and otherwise identify himself, whenever called upon so to do by any conductor or agent of either of the lines over which he may pass, is evidently intended as an additional precaution against a transfer of the ticket either in going or in returning, and not as an alternative or substitute for the previous condition to the validity of the ticket for a return trip." In the Hudson Case the rule upon the subject is thus stated: "A condition, upon a return excursion ticket sold by the railroad company at a reduced rate, requiring the holder to identify herself as the original purchaser of the ticket by writing her signature on the back thereof, and, if this is not satisfactory to the validating agent of the company, to produce other proofs of the fact of identity, is neither unreasonable nor unusual; and the validity of such conditions has, we believe, been universally upheld, as based upon a sufficient consideration. See Hutchinson on Carriers, 580b; Ray on Negligence of Imposed Duties, Carriers of Passengers, §§ 511, 512." But, independent of the common law upon the subject, the act of Congress of June 29, 1906, amending the Interstate Commerce Law, after providing for the filing and publication of schedules of not only passenger but freight rates, provides: "No carrier, unless otherwise provided by this act, shall engage or participate in the transportation of passengers or property, as defined in this act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs." Robinson, 233 U. S. 173, 34 Sup. Ct. 556, 58 L. Ed. 901; Boston & Maine R. R. Co. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. Ed. 868, L. R. A. 1915B, 450, Ann. Cas. 1915D, 593; Chicago & Alton R. R. v. Kirby, 225 U. S. 155, 32 Sup. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501; L. & N. R. R. Co. v. Maxwell, 237 U. S. 94, 35 Sup. Ct. 494, 59 L. Ed. 853, L. R. A. 1915E, 665; Southern Railway Co. v. Prescott, 240 U. S. 632, 36 Sup. Ct. 469, 60 L. Ed. 836; Bitterman v. L. & N. R. R. Co., 207 U. S. 205, 28 Sup. Ct. 91, 52 L. Ed. 171, 12 Ann. Cas. 693; T. & P. Ry. Co. v. Mugg, 202 U. S. 242, 26 Sup. Ct. 628, 50 L. Ed. 1011. There are many other cases from the federal courts determined by both the Supreme Court and inferior ones upholding the same doctrine, and as to which there is no opinion to the contrary. Illustrating the rule as held by the Supreme Court of the United States, we take from the Bitterman Case the following: "That the complainant had the lawful right to sell nontransferable tickets of the character alleged in the bill at reduced rates we think is not open to controversy, and that the condition of nontransferability and forfeiture embodied in such tickets was not only binding upon the original purchaser, but upon any one who ac quired such a ticket and attempted to use the same in violation of its terms is also settled. * And when the restrictions embodied in the act concerning equality of rates and the prohibitions against preferences are borne in mind the conclusion cannot be escaped that the right to issue tickets of the class referred to carried with it the duty on the carrier of exercising due diligence to prevent the use of such tickets by other than the original purchasers, and therefore caused the nontransferable clause to be operative and effective against anyone who wrongfully might attempt to use such tickets. Any other view would cause the act to destroy itself, since it would necessarily imply that the recognition of the power to issue reduced rate excursion tickets conveyed with it the right to disregard the prohibitions against preferences which it was one of the great purposes of the act to render efficacious. This must follow, since, if the return portion of the round trip ticket be used by one not entitled to the ticket, and who otherwise would have had to pay the full one way fare, the person so successfully traveling on the ticket would not only defraud the carrier, but effectually enjoy a preference over similar one way travelers who had paid their full fare and who were unwilling to be participants in a fraud up-selling the ticket so as to bind the defendant, on the railroad company." In the Maxwell Case, supra, the Supreme Court, in construing the statute and upholding the rule under consideration, said: "Under the Interstate Commerce Act, the rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice of it, and they as well as the carrier must abide by it, unless it is found by the commission to be unreasonable. Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed. This rule is undeniably strict, and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress in the regulation of interstate commerce in order to prevent unjust discrimination." Further along in the opinion, quoting from the case of Kansas Southern Railway v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683, the court said: "As was said in Kansas Southern Railway Co. v. Carl, supra: 'Neither the intentional nor accidental misstatement of the applicable published rate will bind the carrier or shipper. The lawful rate is that which the carrier must exact and that which the shipper must pay. The shipper's knowledge of the lawful rate is conclusively presumed, and the carrier may not be required to surrender the goods carried upon the payment of the rate paid, if that was less than the lawful rate, until the full legal rate has been paid.' It was 'the purpose of the act to have but one rate, open to all alike and from which there could be no departure.' [3] It is shown that the price which plaintiff paid Smith for the return portion of the ticket which he bought was much less than that fixed in the schedule filed with the Interstate Commerce Commission under the provisions of the statute to which we have referred. To have permitted the plaintiff to use the ticket for his return trip would not only have violated the stipulation found in it that its return portion should be used only by the original purchaser, but would also have given him the preference over other passengers making the same trip by allowing him a cheaper rate for the same class ticket furnishing the same accommodations. [4] It cannot be successfully contended that plaintiff had the right to use his ticket, notwithstanding the matters to which we have referred, after the agent of the defendant had validated it, because from the proof such validation was clearly produced through fraud and deceit practiced by plaintiff and his companion, but, whether so or not, such validation could amount to no more than the agreement by the validating agent to extend to plaintiff the privileges which the ticket afforded in consideration of the price paid. If this was lower than the same accommodatious given to others, it was a discrimination in favor of plaintiff which the agent could not do so as to bind the defendant, whether done intentionally or by mistake. What an agent could not do originally when 194 S.W.-52 could not be accomplished by another agent through acts otherwise constituting waiver or ratification. It would therefore necessarily follow that the defendant was not bound to honor the ticket, although it had been validated by one of its agents. Moreover, one of the stipulations in the ticket is that the holder must identify himself to the agents and conductors of the carrier at any time when demanded. This evidently gave any agent or conductor having any connection with the use of the ticket authority to inquire into the identification of the holder of the ticket at any time, and, if upon such inquiry it should be developed that the ticket had been wrongfully procured, to take it up. The cases of C., N. O. & T. P. Ry. Co. v. Carson, 145 Ky. 81, 140 S. W. 71, L. & N. R. R. Co. v. Fish, 127 S. W. 519, 43 L. R. A. (N. S.) 584, and L. & E. R. R. Co. v. Lyons, 104 Ky. 23, 46 S. W. 209, 20 Ky. Law Rep. 516, and other like cases relied upon by counsel for appellant are not pertinent here. The facts sought to be shown by the proof and alleged as constituting the mistake or omissions of the agent selling the tickets involved in those cases were such as it was competent for the agent to originally agree to and thereby bind his principal. They were not such as were inhibited by a positive statute, or any other rule of law, and for this reason the inapplicability of the cases to the conditions presented by this record are at once apparent. We are therefore clearly of the opinion that under the facts of this case, and the law as applicable thereto, the trial court correctly held that the defendant had the right to and properly took up plaintiff's ticket. The trial court, however, was of the opinion that it was its duty, under the pleadings and proof, to submit to the jury the question of plaintiff's humiliation and mental anguish alleged to have been produced and suffered by the insulting language which the examiner or inspector of tickets at Los Angeles is alleged to have applied to plaintiff at the time the ticket was taken up. Plaintiff testified to the use of language calculated to bring about such a state of feeling, but the preponderance of the evidence is that none such was used. It might be doubtful, in view of the fact that plaintiff had an illegal ticket, that such conduct on behalf of the inspector or examiner would furnish an element of damages in this character of suit, but, inasmuch as the jury, under appropriate instructions, and about which no complaint is made, found in favor of the defendant upon that issue, we will not enter into a discussion as to whether it was properly submitted to the jury. Upon the whole case we find no error prejudicial to the substantial rights of the plaintiff, and the judgment is affirmed. BARRY v. CITY OF CLOVERPORT et al. PROVEMENTS "STREETS." Ky. St. § 3643, subd. 1, authorizing street, etc., improvements by cities of the fifth class, provides that the cost of sidewalks and curbing shall be paid by the owners of abutting property, and that the cost of streets, avenues, sewers, etc., shall be paid by the city or by abutting owners or partly by each as the city council, etc. Subdivision 3, provides that the cost of construction of streets, highways, alleys, sewers, and public places may be made upon the ten-year bond plan. Held, that while "street" is commonly construed to include “sidewalk," by separately considering "sidewalks and curbing" on one hand and "streets, avenues, highways, and public places" on the other, a city of the fifth class cannot construct sidewalks upon the ten-year bond plan. tucky? (3) Can a city change the grade previously established by ordinance and require the property owners to remove a brick sidewalk, previously constructed under an ordinance, and replace it by a new concrete sidewalk? If the question first presented is answered in the negative, it will be decisive of the motion and render unnecessary the answering of questions 2 and 3. The authority attempted to be exercised by the council of the city of Cloverport in the matter of requiring the making of the improvements referred to, is claimed under section 3643, Kentucky Statutes, as amended by the act of the General Assembly of 1912 (Laws 1912, c. 123). The section contains 13 subsections. Subsections 1, 2, and 3 provide: "1. Public Ways-Cost of Improving-TenYear Plan-Assessments-Lien-Street Improve ment Fund. The city council is hereby author [Ed. Note.-For other cases, see Municipalized and empowered to order any work they may Corporations, Cent. Dig. § 758. For other definitions, see Words and Phrases, First and Second Series, Sidewalk; Street.] Suit for injunction by J. A. Barry against the City of Cloverport and others. Motion to dissolve a temporary injunction granted by the clerk of the circuit court was overruled and defendant brings motion to dissolve such injunction in the Court of Appeals. Mo tion overruled. Malin & Miller, of Owensboro, for plaintiff. R. M. Holland, of Owensboro, for defendants. SETTLE, C. J. The common council of the city of Cloverport, by the due passage of an ordinance, provided for and directed the improvement of a street therein, known as Second Cross street, by the construction of a sidewalk on the west side thereof at the expense of the abutting property owners, and on the ten-year bond plan. The plaintiff, J. A. Barry, a citizen and taxpayer of the city of Cloverport, owning property on the street mentioned, in this action brought against the city of Cloverport, its mayor and councilmen, in the Breckinridge circuit court, after due notice to the defendants and the execution of the required bond, obtained of the clerk of that court, in the absence of the judge thereof, a temporary injunction restraining the defendant from proceeding with the improvements authorized by the ordinance in question. The latter thereafter appeared be fore the judge of the Breckinridge circuit court and entered motion to dissolve the injunction, which motion was overruled; and the case is now before me, a judge of the Court of Appeals, upon a like motion made by the defendants. deem necessary to be done upon the sidewalks. curbing, sewer, streets, avenues, highways, and public places of such city. The expenses incur red in making and repairing sidewalks and curbing shall be paid by the owners of the lands fronting and abutting thereon, each lot or portion of lot being separately assessed for the full value thereof, in proportion to the frontage thereof to the entire length of the whole improvement, not exceeding a square, sufficient to cover the total expense of the work; but the owners of such property shall have the right to make such improvements, if they prefer doing So, instead of paying for the same. The cost and expenses incurred in constructing or reconstructing streets, avenues, highways, sewers and public places shall be paid out of a general fund of the city or by the owners of the land fronting and abutting thereon, as the city council may in each case determine; or the city council may order and direct that two-thirds only of said cost and expenses so incurred shall be paid by the owners of the lands fronting and abutting said improvements and the other one-third paid by the city; but the local assessments shall not exceed fifty per centum of the value of the ground after such improvement is made, excluding the value of the buildings and other improvements upon the property so improved. "The cost of constructing or reconstructing the intersection or crossing of streets, avenues and highways shall be at the expense of the city. all sides by principal streets shall be deemed a square. When the territory contiguous to any public way is not defined into squares on either providing for the improvement for such public or both sides by principal streets the ordinance ways shall be the depth on the side or sides not defined in the square fronting said improvement, to be assessed for the cost of making the same, according to the number of square feet owned by the parties, respectively, within the depth set out by ordinance. "Each subdivision or territory bounded on "2. Duties of City Council. Whenever the city council shall determine upon the construction or reconstruction of streets, avenues, highways, sewers and public places at the expense or par tial expense of the abutting property, as provided in section one of this act, they shall cause the same to be done as follows: The ordering of such improvement shall be by ordinance of the city council, and the contract therefor shall be awarded to the lowest and best bidder after proper advertisement for bids. The city council shall require the accepted bidder to execute a bond to the city with good and sufficient security to be approved by said council for the faithful The questions raised by the motion to dissolve the injunction are thus stated in the brief of defendant's counsel: (1) Can a city of the fifth class, to which Cloverport belongs, construct sidewalks under the tenyear bond plan? (2) Is the ordinance violative of section 157, Constitution of Ken-performance of his contract. For other cases see same topic and KEY-NUMPER in all Key-Numbered Digests and Indexes "3. Cost of Construction-How Paid-Ten- | latter shall be paid by the abutting propYear Plan. The original construction or recon- erty owners. The distinction referred to struction of any streets, * highways, alcould not have accidentally been made by leys, sewers and public places may be made at the exclusive cost of the owners of the lots and the Legislature. In making it that body parts of lots or lands fronting or abutting or doubtless realized that as the cost of conbordering upon the proposed improvements to be structing streets, avenues, and sewers is equally apportioned by the city council according to the number of front feet owned by them, much greater than that of constructing siderespectively, or in part at the cost of the owners walks, it should be left to the discretion of and in part at the cost of the city, upon the pe- the city council to provide for its payment tition of a majority of the property owners of by one of the three methods indicated, but lots or parts of lots, or land abutting or bordering upon the proposed improvement; or the that the cost of the less expensive work, the city council may cause same to be done without construction of sidewalks, should be paid such petition upon the vote of four members- by the abutting property owners. elect of said council at a regular meeting thereof; or the council may, by a majority vote of any regular meeting thereof, cause any such improvement to be made upon the ten-year bond plan as hereinafter provided." The remaining 10 subsections of the statute provide for the issual of bonds, the disposition of the street improvement fund, the method of assessment, the creation and satisfaction of the liens on the abutting property, the apportionment of the money, and the submission of the bond issue to voters. In the absence of the distinction thus made by the section, supra, between streets and sidewalks and in providing distinct methods for paying the cost of constructing them, the argument of defendant's counsel that the word "street" has commonly been construed as including sidewalk would have much force, but in view of the construction compelled by the language the statute, which I think the correct one, neither the argument of counsel nor the authorities cited in support of it can be given any controlling effect upon the decision of the question involved. Subsection 3 of the section, supra, My consideration of the provisions of section 3643, Kentucky Statutes, convinces me that it does not give to the city of the fifth class authority to compel the construc-in providing that: tion or reconstruction of sidewalks under the 10-year bond plan. It will be observed that subsection 1 declares: "The city council is hereby authorized and empowered to order any work they may deem necessary to be done upon the sidewalks, curbing, sewer, streets, avenues, highways, and public places of such city." The first of the two parts into which the subsection then divides itself thus treats of the first two items enumerated in the introductory sentence: "The expenses incurred in making and repairing sidewalks and curbing shall be paid by the owners of the lands fronting and abutting there on." In the second part provision is made for the remaining items as follows: "The cost and expenses incurred in constructting or reconstructing streets, avenues, highways, sewers and public places shall be paid out of a general fund of the city, or by the owners of the lands fronting and abutting thereon, as the city council may in each case determine; or the city council may order and direct that two-thirds only of said cost and expenses so incurred shall be paid by the owners of the lots fronting and abutting said improvements and the other one-third paid by the city." "The original construction or reconstruction of any streets, avenues, highways, alleys, sewers and public places may be paid for in any of the council, may, by a majority vote at any regthe three ways previously mentioned, or that ular meeting thereof, cause any such improvement to be made upon the ten-year bond plan as hereinafter provided" -omits altogether any mention of the terms sidewalks" or "curbing." If it had not been the evident purpose of the Legislature to maintain the distinction between sidewalks and streets and the separate methods of providing for the payment of the cost of constructing them made by subsection 1, in providing, as is done in subsection 3, a fourth method for paying the costs of the construction of streets, etc., by the ten-year plan, it would either have mentioned sidewalks or used such language as showed an intention to make the ten-year bond plan applicable as a method of paying for the construction of sidewalks as well as streets. The statute as a whole seems free from ambiguity. It admits, therefore, of only one interpretation, and nowhere in it is found a provision declaring that sidewalks and curbing shall be paid for in any other way than by the owners of abutting property. It is patent that the Legislature, in this subsection, separately considered "sidewalks and curbing" on the one hand, and "streets, If, as claimed, the charters of some of the avenues, highways and public places" on the cities of other classes contain a provision other. Only in the matter of constructing permitting the cost of constructing sideor reconstructing streets, avenues, highways, walks to be paid under the ten-year bond sewers, and public places is a choice allow- plan, it but emphasizes the fact that the ed whereby the cost may be paid by the omission of such a provision from the statcity, by the abutting property owners, or one- ute before us applicable to cities of the fifth third by the city and two-thirds by the abut- class shows an intention upon the part of ting property owners. But in the matter the Legislature to make the method inappliof constructing or reconstructing sidewalks cable to cities of that class. It may here no such choice is allowed. The require- be remarked that section 3706, Kentucky nient is that the cost of constructing the Statutes, applicable to cities of the sixth money in timber and mineral lands without atA foreign corporation, which invests its tempting to develop them and merely holding the property as an investment, is "doing business" within the state. class, contains a provision expressly permit-16. CORPORATIONS 642(1)-FOREIGN CORPORATIONS "DOING BUSINESS." ting the cost of constructing or reconstructing sidewalks and curbing to be paid under the ten-year bond plan. This variance of itself shows an intention on the part of the Legislature to distinguish between the two classes and to make inapplicable to cities of the fifth class the ten-year bond plan as a method of paying the cost of constructing sidewalks therein. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2520, 2521. For other definitions, see Words and Phrases, My attention has been called to no case, nor have I found one, which passes upon Under Ky. St. §§ 4189c, 4189d, as to impothe precise question here presented, but not-sition of license taxes on foreign corporations and their property owned and business transwithstanding the absence of authority fur- acted within the state, the tax may be imposed nished by an adjudicated case, I think the when the corporation merely holds lands for insolution here given of the question correctly vestment. decides it. For the reasons indicated the motion of the defendants to dissolve the injunction is overruled. The six other judges of the Court of Appeals sat with me in the consideration of this motion, and each of them concurs in the conclusion reached. GREENE, Auditor, et al. v. KENTENIA (Court of Appeals of Kentucky. May 15, 1917.) Const. § 171, requiring taxation to be uniform upon all property, and section 174, providing that nothing shall prevent the levying of taxes based on licenses or franchises, require only the property tax to be uniform. [Ed. Note.-For other cases, see Licenses, Cent. Dig. §§ 8, 19.] 2. LICENSES 18-LICENSE TAXES-FOR EIGN CORPORATIONS. The state may impose a tax upon the franchise of a foreign corporation, "franchise" being employed in the sense of the privilege of doing business within the state, and not upon the primary franchise of being a corporation. [Ed. Note.-For other cases, see Licenses, Cent. Dig. § 47.] 3. CORPORATIONS 638-FOREIGN CORPORATIONS-RIGHTS. As a corporation is a creature of the law of the state where it is created, it cannot carry that law with it into a state where it sees proper to migrate in order to engage in the exercise of its corporate powers. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 2529.] 4. CORPORATIONS TIONS-RIGHTS. 638-FOREIGN CORPORA When the corporation does migrate into another state, it must conform to the laws of that state containing the terms under and by virtue of which corporate privileges may be exercised therein, before it can do so. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 2529.] 5. LICENSES 7(6)-LICENSE TAXES CORPORATIONS. The only requirement in taxing foreign corporations upon their licenses is that the burdens of a foreign corporation shall be no more onerous than those of domestic corporations for exercising the same character of privileges. [Ed. Note. For other cases, see Licenses, Cent. Dig. §§ 12, 19.] [Ed. Note.-For other cases, see Licenses, Cent. Dig. § 47.] Appeal from Circuit Court, County. Franklin Suit by the Kentenia Corporation against Robert L. Greene, as auditor of state, and others. From a decree granting the injunetion, defendants appeal. Reversed, with directions. M. M. Logan, Atty. Gen., for appellants. Frank Chinn, of Frankfort, and Helm Bruce and Bruce & Bullitt, all of Louisville, for appellee. THOMAS, J. the court below by the appellee, plaintiff, a This suit was brought in Virginia corporation, against the board of valuation and assessment in Kentucky, consisting of Robert L. Greene, auditor, Sherman Goodpaster, treasurer, and James P. Lewis, secretary of state, to enjoin the board from certifying to the auditor for collection the license tax provided by sections 4189a4189d, inclusive, Kentucky Statutes, which the board had determined was due the commonwealth from the defendant under the pro visions of those sections. The tax for the year 1915 was assessed at $3,000, as the corporation had an authorized capital of $10,000,000, and the mode of arriving at the amount of the tax, as well as the amount of it, are neither seriously questioned. The complaint is that the plaintiff is not liable for any portion of the tax, because, it is insisted, that to collect it would be depriving it of its property without due process of law, and denying it the equal protection of the laws, contrary to the provisions of the Constitution of the United States, and that it would also violate sections 171 and 174 of the Constitution of Kentucky. A demurrer filed to the petition was overruled, and, the defendants declining to plead further, the injunction prayed for was granted, and, complaining of that ruling of the court, this appeal is prosecuted. The part of section 171 of the Constitution which it is insisted would be violated if the license tax was collected is: "Taxes shall be levied and collected for public purposes only. They shall be uniform upon For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |