plaintiff's favor in an action brought to enjoin the collection of an alleged illegal license tax and to recover back certain license fees alleged to have been paid under protest. Modified.

The facts are stated in the opinion. Messrs. J. G. Vallandingham and J. W. Douglas, for appellants:

A license fee is not unreasonable, unless it applies or operates unequally on persons engaged in the business upon which it is placed, or works a confiscation upon the

in this case, that the plaintiff received injuries, and that they were caused by an accident resulting from defective machinery, the plaintiff cannot recover, because the plaintiff has not alleged said cause as a ground of recovery." The instruction was properly refused, because, though the accident may have resulted from defective machinery, yet, if the driver's negligence in operating the machine was the cause of the accident, the appellee was entitled to recover. Appellant's seventh instruction stated to the jury, in effect, that if the accident | property in which the party has a vested was caused by the breaking of the brake- or exclusive right, and which he cannot rod, and, if such breaking of the brake-rod avoid by adjusting his business to the condiwas not caused by the driver's negligence, tion. the plaintiff could not recover. This was as favorable an instruction as the appellant was entitled to; for, if the driver of the automobile negligently ran near to the street car at a high rate of speed without having his machine under control, and if, without such negligence, the accident would not have happened, the appellant would still be lia- German Secur. Bank v. Coulter, 112 Ky. ble, even though the breaking of the brake- 577, 66 S. W. 425, 427; Louisville & N. R. rod was occasioned by a latent defect, for | Co. v. Hopkins County, 87 Ky. 605, 9 S. W. which he was not responsible.

Hall v. Com. 101 Ky. 382, 41 S. W. 2. A license fee is a special tax, and, unless otherwise specially provided by statute, can be collected only by suit; and the payment of same with full knowledge of the law and facts, and voluntarily made, is conclusive, and no action lies for recovery.

We find no error in the record. The judg- Case ment is affirmed.

KENTUCKY COURT OF APPEALS.

Note.

Discrimination as to amount of tax or license fee on different vehicles as affecting validity of tax.

For cases, in addition to those herein cited, passing upon the validity of an ordinance as affected by discrimination as to

FISCAL COURT OF OWEN COUNTY et the amount of tax or license fee imposed

al., Appts.,

V.

F. & A. COX COMPANY.

(— Ky. - 117 S. W. 296.)

Tax-injunction.

upon different vehicles, see also the note to Waters-Pierce Oil Co. v. Hot Springs, 16 L.R.A. (N.S.) 1035.

Municipal ordinances imposing license fees upon vehicles graded from $2 to $30 according to whether drawn by one or two animals have been sustained as reasonable.

1. The collection of an illegal tax may be Kissinger v. Hay (Tex. Civ. App.) 113 S. enjoined.

Same-legality - prohibitive.

W. 1005; Ft. Smith v. Scruggs, 70 Ark. 549, 58 L.R.A. 921, 91 Am. St. Rep. 100, 69 S. 679; Brewster v. Pine Bluffs, 70 Ark. 28, 65 S. W. 934; Johnson v. Macon, 114 Ga. 426, 40 S. E. 322.

2. A license tax on wagons used for cart-W. ing for hire is prohibitive and illegal if, after paying the expense of running one and the depreciation of the wagon and team, there would be little left beyond the amount

of the tax.

Same discrimination.

3. A license tax on a four-horse wagon used for hauling freight for hire, which is nearly three times as much as that imposed on three-horse wagons, is void for discrim

ination.

Tax

recovery — defendant.

4. A judgment for a tax illegally collected cannot be given against the county, but it must be given against the officer in whose possession the money is found.

(March 12, 1909.)

So, an ordinance imposing a license fee upon vehicles, of $2 to $15. according to whether drawn by one, two, three, or more animals, is reasonable. Harder's Fire Proof 85 N. E. 245; Burlington v. Unterkircher, Storage & Van Co. v. Chicago, 235 Ill. 58, 99 Iowa, 401, 68 N. W. 795; Kansas City Coraopolis, 22 Pittsb. L. J. N. S. 64. v. Richardson, 90 Mo. App. 450; Gibson v.

So, it is reasonable to require a license fee of $5 for a dray, furniture cart, or grocery or delivery wagon drawn by one horse; $2.50 for a one-horse milk or butcher's wagon; $12 for a truck or float drawn by two horses; $8 for all other four-wheel vehicles for transporting merchandise, baggage, etc., when drawn by two animals, and $1 for each additional animal used thereon.

APPEAL by defendants from a judgment Brown v. Galveston, 97 Tex. 1, 75 S. W.

of the Circuit Court for Owen County in 488.

497; Louisville & N. R. Co. v. Com. 89 Ky., it unjustly discriminates between one, two, 531, 12 S. W. 1064. and three-horse wagons and four-horse wag Messrs. W. B. Moody and H. G. Botts ons, and on the further ground that the lifor appellee.

cense fee imposed on the four-horse wagons is oppressive and prohibitive. The law is

Clay, C., delivered the opinion of the well settled that an injunction will lie to court:

The plaintiff, F. & A. Cox Company, a corporation, instituted this action against the members of the fiscal court of Owen county, and the county treasurer, to enjoin the collection of a license tax of $200 imposed upon four-horse wagons hauling freight for hire, and to recover the sum of $400 claimed to have been paid under protest as license fees on two four-horse wag

ons.

The chancellor granted the injunction; and also gave judgment against Owen county, the members of the fiscal court, and the county treasurer for the $400. From that judgment Owen county, the members of the fiscal court, and the county treasurer, prosecute this appeal.

restrain the collection of an illegal tax. Norman v. Boaz, 85 Ky. 557, 4 S. W. 316; Baldwin v. Shine, 84 Ky. 510, 2 S. W. 164; Gates v. Barrett, 79 Ky. 295. An ordinance, by-law, or order, imposing license fees, may be valid in part and invalid in part. Cooley. Const. Lim. § 177; Levi v. Louisville. 97 Ky. 394, 28 L.R.A. 480, 30 S. W. 973; Whaley v. Com. 110 Ky. 154, 61 S. W. 35. From the proof in this case it would appear that the fiscal court imposed the license fee of $200 on four-horse vehicles on the idea that, if free turnpikes were not maintained by the county, the owners of such vehicles would be required to pay more than that amount by way of tolls. The defendants introduced proof to the effect that, in the By 181 of the Constitution, authority opinion of many citizens of Owen county, is given to the general assembly by gen- the license fee imposed was altogether reaeral laws to delegate the power to counties sonable, considering the wear and tear on to impose and collect license fees on stock the roads occasioned by the use of fourused for breeding purposes, and on fran-horse wagons. By the decided weight of the chises, trades, occupations, and professions. testimony of those who knew, it appears Pursuant to the above authority, the general assembly enacted § 4325a, Ky. Stat. (Russell's Stat. § 5471), which is as follows: "That in all counties having free turnpikes the fiscal court of such counties may place license on livery vehicles or any other vehicles that carry passengers or freight for pay." In the year 1906 the fiscal court of Owen county passed an order imposing license fees as follows:

For each one-horse livery rig or buggy.. $
For each two-horse livery rig or buggy
For each one-horse vehicle run or operated

to carry passengers or baggage for pay For each two-horse vehicle run or operated to carry passengers or baggage for pay For each one-horse huckster wagon operated for pay..

For each two-horse huckster wagon operated for pay..

For each two-horse huckster wagon operated as a business for hauling freight for pay.

For each three-horse wagon operated as a business for hauling freight for pay.. For each four-horse wagon operated as a business for hauling freight for pay..

6

10

10

that the owner of a four-horse wagon, after paying the expense of running it and taking into consideration the depreciation in the value of the teams and the wagon itself. could make but little, if anything, more than the amount of the license tax imposed.

It may be conceded that, ordinarily, the reasonableness of a license fee imposed as a tax is a question for the taxing power, and the courts will not interfere with its discre tion. Hall v. Com. 101 Ky. 382, 41 S. W. 2. This rule we think, however, is subject to the limitation that the tax imposed shall not amount to a prohibition of any useful or 40 legitimate occupation. Re Quong Woo (C. C.) 13 Fed. 229; Mankato v. Fowler, 32 Minn. 364, 20 N. W. 361; Ottumwa v. Ze20 kind, 95 Iowa, 622, 29 L.R.A. 734, 58 Am. St. Rep. 447, 64 N. W. 646; Vansant v. Harlem Stage Co. 59 Md. 330; Brooks v. Mangan, 86 Mich. 576, 24 Am. St. Rep. 137, 49 N. W. 633; Caldwell v. Lincoln, 19 Neb. 569, 27 N. W. 647. While there are numer ous authorities to the contrary, it will be found that the license fee involved in those cases was not prohibitive, and the courts simply declared the general rule that the reasonableness of the tax was a matter within the discretion of the taxing power. We can hardly believe that the same courts that announced that doctrine would hold to be valid

40

75

200

The order provided that the license fees so collected should go to and become a part of the road and bridge fund.

It appears from the record that plaintiff is engaged in transporting passengers and freight for hire between the city of Owen ton and the town of Sparta, in Gallatin county, a station on the Louisville & Nashville Railroad. For this purpose it employs several four-horse wagons, besides many other wagons used for the same purpose. The license order is assailed on the ground that

an ordinance or statute imposing upon every physician and attorney at law an annual license tax of $10,000, or impos ing upon every merchant a license of $5,000,

Evidence

-

deceit opinion burden. 2. The mere opinion of a buyer of land that the seller, in erroneously pointing out land as part of that sold, was honestly mistaken, does not relieve the seller from the duty of overcoming the prima facie case of deceit made against him by evidence that the statement was false. Pleading - deceit.

ment was not knowingly false, if, by reason, 4 Sup. Ct. Rep. 360; Peck v. Derry, L. R. of his position, he should have known the 37 Ch. Div. 541; Cabot v. Christie, 42 Vt. truth or falsity of his assertion. 121, 1 Am. Rep. 313; Taylor v. Ashton, 11 Mees. & W. 418; Hammatt v. Emerson, 27 Me. 308, 46 Am. Dec. 598; Bennett v. Judson, 21 N. Y. 238; Stone v. Denny, 4 Met. 151; Hazard v. Irwin, 18 Pick. 95; 8 Enc. Pl. & Pr. p. 905; Barnes v. Union P. R. Co. 4 C. C. A. 199, 12 U. S. App. 1, 54 Fed. 87; Litchfield v. Hutchinson, 117 Mass. 195; Wheeler v. Baars, 33 Fla. 696, 15 So. 584; Davis v. Nuzum, 72 Wis. 439, 1 L.R.A. 774, 40 N. W. 497; Porter v. Fletcher, 25 Minn. 493; March v. Falker, 40 N. Y. 562; Munroe v. Pritchett, 16 Ala. 785, 50 Am. Dec. 203.

3. A charge of false representations that certain land was included in the tract sold in the complaint in an action for deceit in the sale of real estate is not sufficient to charge knowledge of falsity, or recklessness on the part of the vendor.

A

(December 7, 1908.)

PPEAL by plaintiff from a judgment of the Circuit Court for Washington County in defendant's favor in an action brought to recover damages for deceit. Reversed.

The facts are stated in the opinion. Messrs. Percy & Moody, for appellant: A vendor who, in selling property, makes false representations, having, at the time, knowledge that his statements are false, or what the law regards as equivalent to such knowledge, becomes liable to an action of deceit in case the purchaser, acting in reliance upon the representations, consummates the purchase, and suffers loss thereby.

20 Cyc. Law & Proc. pp. 45, 56, et seq.; Cottrill v. Krum, 100 Mo. 397, 18 Am. St. Rep. 549, 13 S. W. 753; Mitchell v. Zimmerman, 4 Tex. 75, 51 Am. Dec. 717; Tyson v. Passmore, 2 Pa. St. 122, 44 Am. Dec. 181; Lynch v. Mercantile Trust Co. 5 McCrary, 623, 18 Fed. 486.

One who, without knowing that it is true, takes it upon himself to make a representation to another, upon the faith of which that other acts, is bound, though his mistake was perfectly innocent.

Evans v. Edmonds, 13 C. B. 786; Brooks v. Hamilton, 15 Minn. 31, Gil. 10; Cooper v. Schlesinger, 111 U. S. 148, 28 L. ed. 382,

Messrs. Campbell & Cashin, for appel

lee:

An action of deceit cannot be maintained if the false representations are made in the honest belief that they are true.

14 Am. & Eng. Enc. Law, p. 86; 20 Cyc. Law & Proc. pp. 24, 35; 8 Enc. Pl. & Pr. p. 901; Kountze v. Kennedy, 147 N. Y. 124, 29 L.R.A. 360, 49 Am. St. Rep. 651, 41 N. E. 414; Cottrill v. Krum, 18 Am. St. Rep. 555, note; McLeod v. Tutt, 1 How. (Miss.) 288; Taylor v. Frost, 39 Miss. 328; Mizell v. Sims, 39 Miss. 331; Sims v. Eiland, 57 Miss. 83, 607; 2 Warvelle, Vend. & P. § 903.

Fletcher, J., delivered the opinion of the court:

Appellant, A. J. Vincent, purchased from S. R. Corbitt and Frank Trimble, partners engaged in the business of buying and selling lands, the land described as the S. E. of section 4, township 22, range 6. Adjoining this land, and with nothing to mark the boundary between, was the S. W. 14 of the same section, belonging to one Barker. The purchase price was $5,040, which was fully paid by Vincent. The transaction was had between Vincent and Trimble, one of the partners, and Trimble represented to Vincent, before the purchase was made, and also at the time of the purchase, that the land sold contained 65 acres of cleared land Note. - The conclusion of the court in the chaser may rely upon his representations in above case was based on the general rule reference thereto, without other proof of applicable to actions for deceit,-that, to be knowledge or intent than the mere fact of actionable, a misrepresentation must have the making of the representation and its been made with knowledge of its falsity, falsity. This question is considered, and and with intent to deceive, or must have the cases bearing thereon are gathered, in been made recklessly, or as of knowledge a note to Selby v. Matson, 14 L.R.A. (N.S.) when no such knowledge existed, and with 1210. No case other than VINCENT V. CORa like intent. The court, apparently, did | BITT has been found since the foregoing not consider the theory, frequently recog- note, wherein this question has been connized, that false representations as to bound-sidered, although the general doctrine was aries, made by the vendor to the purchaser, applied in Vaupel v. Mulhall (Iowa) 118 present an exception to this general rule in N. W. 272, and the right of a vendee to that, at least, where the boundaries are rely upon representations by the vendor as clearly marked out, it will be presumed that to boundaries of land, when knowingly made, the owner of land knows them, and the pur- was sustained.

and six tenant houses. After the delivery, this respect that an action of deceit differs of the deed and the payment of the purchase from an action for a breach of warranty, money, Vincent discovered that 50 acres of since, in the latter action, it is enough to the cleared land were in fact a part of Bar- show that a material warranty has failed, ker's tract, and that he (Vincent) got only and the question of knowledge is immaterial. 15 acres of cleared land. It was further This rule as to actions of deceit is broadly ascertained that one of the tenant houses, stated in 14 Am. & Eng. Enc. Law, 2d ed. which had been represented as being on his p. 86, where it is said: "By the overwhelm(Vincent's) land, was in fact situated on the ing weight of authority, in order to render a land of Barker. Thereupon, after fruitless person liable for false representations in efforts to secure a settlement, Vincent in- an action of deceit, it must be shown that stituted an action of deceit against Corbitt he made the representation scienter,—that and Trimble, claiming damages for the false is, either with actual knowledge of their and fraudulent representations; but, being falsity, or under such circumstances that the unable to secure service upon Trimble, the law will imply or impute knowledge; as in cause proceeded against Corbitt alone. the case of reckless statements without knowledge whether they are true or false; representations made for a fraudulent purpose, though without actual knowledge of their falsity; and representations accompanied by a false assumption of knowledge, express or implied. As a general rule, an action of deceit cannot be maintained if a false representation is made in the honest belief that it is true."

The original declaration failed to charge that these false representations were made with knowledge of their falsity on the part of the vendors, and because of this omission a demurrer to the declaration was successfully interposed. However, leave being granted to amend, an amendment was made averring that the representations were made "without knowledge or well-founded belief in their truth on the part of defendants." On the trial Vincent testified to the facts above set forth, and stated that the prospect of securing this quantity of cleared land was a material inducement to the purchase; that Trimble and the witness had ridden by the land two or three times on the train; that Trimble stated positively on more than one occasion, and at the time the deal was closed, that the tract which he proposed to sell contained the entire 65 acres of cleared land and all six of the tenant houses; that, as a matter of fact, a subsequent survey showed that he (witness) got only 15 acres of cleared land and one cabin fewer than had been represented; and that the cleared land was worth $30 per acre more than uncleared land. He stated, however, that, in his opinion, Mr. Trimble was honestly mistaken about the land, and had not been guilty of any intentional fraud or wilful deceit. There was further shown by a surveyor the location of the true boundary line between the two tracts. This being all the evidence of the plaintiff, the court excluded the evidence and directed a verdict for the defendant, and plaintiff prosecutes this appeal.

It is the contention of appellee that this action of the lower court was correct, since there was no proof that the false representations were knowingly made, but that, on

the contrary, plaintiff gives it as his opinion that Trimble made an honest mistake, and did not intend to defraud. It is therefore argued that, since knowledge on the part of a vendor of the falsity of a representation is the gist of an action of deceit, there can be no recovery in such an action unless such knowledge is shown. It is pointed out in

While due weight must be given to the necessity for alleging and proving that declarations were made with knowledge of their falsity, regard must also be had for the equally well-settled principle that statements recklessly made and statements made as of knowledge when in fact no such knowledge exists are in law considered as the equivalents of conscious misrepresentations. The doctrine is thus aptly put: In actions of deceit, the charge of fraudulent intent is "maintained by proof of a statement made as of the party's own knowledge, which is false, provided the thing stated is not merely a matter of opinion, estimate, or judgment, but is susceptible of actual knowledge; and in such case it is not necessary to make any further proof of an actual intent to deceive. The fraud consists in stating that the party knows the thing to exist when he does not know it to exist; and, if he does not know it to exist, he must ordinarily be deemed to know that he does not." Chatham Furnace Co. v. Moffatt, 147 Mass. 403, 9 Am. St. Rep. 727, 18 N. E. 168. It is further said in 14 Am, & Eng. Enc. Law, 2d ed. p. 99: "To bring a case within the principle above stated, it is not necessary that the party who has made the false statement of fact shall have unqualifiedly declared himself possessed of knowledge, or, in other words, that he shall have asserted in express terms that he knew his statement to be the truth. If a person makes a positive and unqualified false statement of a fact which is susceptible of knowledge, affirmation of knowledge is implied from the positive character of the statement; and,

an