Bailey and Others v. Wood and Others. and payable to the State, in the sum of five thousand dollars, conditioned to keep his warehouse in good condition and repair, so as to effectually protect the tobacco stored therein; that he will not sell any tobacco that has been bought by him, or on his account, or purchased on his account any tobacco stored in his warehouse, either directly or indirectly, and that he will perform faithfully all the duties of warehouse keeper as prescribed by law. “3382 (1881a) 2598. Failing to Give Bond, not to Collect Fees; Penalty. Should said proprietor fail to execute said bond for five thousand dollars, then he shall not be entitled to collect any fees on tobacco stored in his warehouse, under a penalty of one hundred dollars for each offense, to be recovered in the name of the State, one half to go to the informer. "3383 (1882a) 2599. Who may Sue, Bond. Any planter or person aggrieved may sue on this bond for a breach thereof in the name of the State, until the penalty is exhausted." Sections 3388, 3389, then provide the duties of inspectors and their deputies: "3399 (1898a) 2615. Feees, Commissions, etc. The compensation of warehouse keepers for receiving, storing, inspecting, coopering and selling tobacco shall be as follows: to-wit: To be paid by the seller, $2.50 and one per cent. commission on proceeds of sale; to be paid by buyer, $1.50, and for storage after sale, after the first thirty days, for each month or part thereof, twenty-five cents. "3400 (1899a) 2616. Penalty for Extortion. Any warehouse keeper who shall charge more than is allowed in the preceding section, is guilty of a misdemeanor, and is also liable to a penalty of $10 to the planter or person over charged, recoverable before any justice of the peace. Bailey and Others v. Wood and Others. "3401 (1900a) 2617. Refusing Bid. Any planter or other owner of tobacco sold at auction, may, by paying the fees, refuse at the time to take the price at which it was cried off." It is claimed that appellees failed to comply with these sections in any particulars, and especially in these: They originally opened a warehouse in a certain part of the town, calling their house the "Grange." Later they removed to another warehouse, calling it the "Gracy." They did not execute a new bond, or take the oath anew, when they made this removal (although they seem to have complied originally). Appellant insists that the purpose of the bond, etc., is directed to the "house," while appellee's version is that it is to the business only. We are of the latter view. It is also provided that warehousemen, by taking the oath and executing the bond referred to, became thereby inspectors of tobacco, and are charged with certain duties as such. No provision is made for any other inspector than one who is a warehouseman, except that warehousemen who are inspectors may appoint deputies. There appears nothing in the chapter, as quoted to us, requiring such depnties to be warehousemen. The warehousemen of Clarksville, and the wholesale buyers patronizing that market, organized a corporation under the laws of Tennessee as early as 1878, known as the "Clarksville Tobacco Board of Trade." Only buyers and sellers of tobacco in that market are eligible as members. One of the rules or by-laws adopted by the board is: "That this board decides that an independent board of inspectors shall be elected, who shall be deputized by the board of warehousemen as inspectors, to act in their place," Then follows a formula by which such inspectors are to be chosen, and regulating their compensation. We are of opinion that each of the warehouse Bailey and Others v. Wood and Others. men had the right to designate as their deputies the same persons. Nor is there any impropriety shown, and at least no illegality, in their allowing such deputies to be nominated or agreed upon by the method of submitting the matter to a committee of warehousemen and buyers. We are clearly of opinion that appellees were entitled to receive and collect the statutory fees for receiving, storing and selling appellant's tobacco. Appellant claims that under section 3399 the fee therein. provided to the warehousemen is in full of all the services that he may render to the shipper; that the charge of $2 for reselling, called "resampling," is an extortion, under section 3400. In the absence of a construction by the courts of Tennessee of this section, this court is inclined to hold, and in this case does hold, that the fee of $2.50 and 1 per rent. commission allowed the warehousemen against the shipper is meant to cover only those items specifically referred to in that section. It was shown in this case that the shipper, within a given number of days after an auction sale of his tobacco, has the right to reject a bid, under section 3401; that appellant did reject bids to the extent of about 160 in number, thus necessitating a resale of that tobacco. It was shown that the actual expense to the warehousemen was about $2 in each case of resale. It has been the custom in that market for about 20 years to charge this fee for resampling or reselling. It does not appear that any prosecutions or suits for extortion have been brought by the parties to these innumerable transactions in the courts of Tennessee, all parties apparently acquiescing in this rule of the board of trade. Such a contemporaneous construction by the parties directly af fected by the act for such a great length of time is strongly 114 42 f115 281 Coulter, Auditor v. Louisville Bridge Company. persuasive that the charge under question is not prohib. ited by the statutes, and therefore not an extortion. The judgment is reversed, and cause remanded, with directions to ascertain the amount of interest included in the note sued on, growing out of the discounting by appellees with the First National Bank of Clarksville of appellant's time bills of exchange, and to deduct the same from appellant's debt, but to charge appellant in lieu thereof the 6 per cent. per annum interest upon the moneys furnished him by appellees on the sight drafts as of the date of their payment by appellees, and for other necessary proceedings not inconsistent herewith. CASE 5-ACTION BY THE LOUISVILLE BRIDGE COMPANY AGAINST GUS Coulter, Auditor v. Louisville Bridge Co. 135 788 APPEAL FROM FRANKLIN CIRCUIT COURT. JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. AFFIRMED. TAXATION FINALITY OF ACTION OF ASSESSING OFFICERS. Held: Where the proper assessing officers, in the time and substantially in the manner prescribed, have acted in fixing the valuation on property liable to assessment for taxation and no relief has been sought, in the time allowed for correction of their action, it is final. CLIFTON J. PRATT, ATTORNEY GENERAL, FOR APPELLANT. The appellant filed a general demurrer to the plaintiff's petition, which was overruled by the lower court, and failing to plead further the court granted a permanent injunction according to the prayer of the petition from which judgment this appeal is prosecuted. Coulter, Auditor v. Louisville Bridge Company. The question presented is whether, the former Board of Valuation and Assessment, by declaring there was "no franchise," can estop the present board from fixing the value of the appellee's franchise? The Constitution, section 174, provides "that all property, whether owned by natural persons or by corporations, shall be taxed in proportion to its value unless exempted by the Constitution." The capital stock of a corporation includes the entire property, real and personal, including assets on hand, to be valued as an entirety from which deduct the tangible property already assessed and the net balance shows the franchise value which is subject to taxation. Henderson Bridge Co. v. Com., 99 Ky., 641; Henderson Bridge Co. v. Negley, 23 R., 756. The undisputed facts in this case show that the value of appellee's franchise was $662,998 for the year in question. The duty of the board is to fix the value of the franchise. It has no power to exempt the franchise from taxation. To say that there is "no franchise," as the appellee contends was done, was in effect to release its property from taxation. It has been held in Stone, Auditor v. City of Louisville, 22 Rep., 423, that "The board of valuation and assessment has power to make retrospective assessments for franchise taxes." No injustice was done the appellee by fixing its franchise, as the admitted facts show that it had such a franchise subject to the tax imposed by law. CHARLES H. GIBSON & W. S. PRYOR, FOR APPELLEE. There were two hearings before Auditor Stone and his board on the question of whether there was any franchise to be taxed, resulting in "no franchise," as alleged in the petition. The present auditor concluded the valuation of the bridge was too low, and undertook to make a re-valuation and fixed an estimate on the value different from that of the former board. There is no evidence or statement that any mistake was made, misrepresentation or fraud practiced by any one in the former assessment. We contend that there must be some finality to such important matters, and if a reduction or increase of values is to prevail as each board coming into power may estimate former values, there will be no end to the litigation that will necessarily arise, and no permanence in any finding by such boards, but all will be left open for correction by subsequent boards, without any evidence of fraud, mistake or concealment of values charged. |