Southern Railway in Kentucky, &c. v. Coulter, &c. tention of the Legislature was that the franchise tax should be certified to the subdivisions aforesaid in proportion to the mileage without any regard to any other question, and such a rule is manifestly equitable. For while it is true that the tangible property of the road differs in condition, yet the franchise does not. For instance, taking the tangible property of the road in Frankfort, and a distance of 10 miles of the track toward Louisville, the total value of the tangible property would be worth much more than 10 miles of the tangible property further on. But the franchise of the last-named 10 miles is worth as much as the franchise of the first-named 10 miles, because the whole of the track is necessary to make the franchise of any appreciable value; hence it follows that the manner of certifying the value of the franchise as required by the statute is just and reasonable. It is also further contended for appellants that the present board of valuation had no right to make a retrospective assessment of their franchises. This contention is not tenable. The reverse has been repeatedly decided by this court in the following cases, as well as others not necessary to quote: Levi v. City of Louisville, 97 Ky., 394, 16 R., 87, 30 S. W., 973, 28 L. R. A., 480; Louisville & J. Ferry Co. v. Com(108 Ky., 717) (22 R., 446) (57 S. W., 624); Stone v. City of Louisville, 22 R., 423 (57 S. W., 627). Many other cases might be cited to the same effect, and besides these decisions in support of appellees' contention, it will be seen that section 4977 of the statute, supra, provides that the chairman of the board shall convene the same from time to time as the business of the board shall require. Even if it be conceded that the old board agreed or stipulated with the appellants that they should not pay any franchise tax to the local authorities, still such agreement is null 677 Southern Railway in Kentucky, &c. v. Coulter, &c. and void. It was held in City of Louisville v. Louisville R. Co., 111 Ky., 1, 23 R., 390 (63 S. W., 14), by this court, that the city council of Louisville could not release a street railway company from taxes due the city. Much less could the board of valuation and assessment release appellants from local taxation of the value of their franchise. It is perfectly obvious that the matter in controversy here is not really an assessment in the common acceptation of the term, but it is simply making a certification which the former board neglected to do, and never attempted to do. If the old board had in fact apportioned and certified to the various taxing districts the franchise subject therein to taxation, a different question would have been presented; but in this case they left part of their work undone, and the action of the present board taken, or supposed to have been taken, is merely taking up and completing the unfinished work of its predecessor. It may be true that, in the opinion of the old board, there was nothing to certify. In fact, it appears from this record that, under the advice of an able attorney at law from a sister State, they reached the conclusion that the tangible property, as regards the county, etc., should be taken from the value of the franchise due to each county. In other words, that, so far as the minor subdivisions of the State are concerned, the value of the tangible property should be subtracted twice, but as to the State only once. The franchise tax not having been in force many years, and the old board not being in the active practice of law, it is not surprising that they erred in the construction of the section in question; and the nonresident attorney, not being familiar with the Kentucky law and statute, seems to have fallen into the error first. No blame attaches to either of them. It is not surprising that the attorneys for the various counties and Southern Railway in Kentucky, &c. v. Coulter, &c. taxing districts, finding that a franchise tax was collected for the State, and presumably knowing that the counties. and towns were also entitled to a franchise tax, would go before the board of valuation and assessment and demand a certification as provided by law, which, as we have seen, was upon proper notice, to appellants, discussed and de cided in accordance with the contention of the county attorneys aforesaid. It is claimed on behalf of the appellant Illinois Central Railroad that, as it did not get possession of the entire lines until some time in 1897, no franchise tax should be assessed against it prior thereto. The record, however, discloses the fact that it made reports to Auditor Stone, and upon these reports he fixed the value of its franchise, commencing with the year 1896, up to the same time the other assessments were made. We are therefore of the opinion that as they recognized themselves as owners of the line at that time, and made their reports and paid taxes to the State, it is now too late to raise that question. We are not inclined to hold that appellants necessarily bound themselves to pay the county franchise tax simply because they paid the State a franchise tax. Neither have they any right to complain of the delay in enforcing the local taxes. They have simply had the use of the money without interest during these many years. It is, however, argued for appellants that, as to telegraph and telephone lines, the former board made the second deduction of the tangible value of such companies when certifying to the local authorities. We fail to see that such a mistake would make valid and binding a still greater one in respect to the appellants. The effort now of the board is to enforce the law alike upon all the corporations named in the act in question. Evidently the local prop Southern Railway in Kentucky, &c. v. Coulter, &c. erty of telephone and telegraph lines in the several counties amounts to a very small sum-too small to have attracted much attention at the time. At least, such is the reasonable presumption, and it may be remarked that such second deduction was the result of the effort of the appellants to escape this very taxation now in question. The record shows that the old board fixed a low valuation on the franchise in question. No person, either natural or artificial, ought to be required to pay any tax not required by law. Neither should their property, whether tangible or intangible, be assessed at more than its value as provided by law. All persons should pay their taxes upon all property which the law makes subject to taxation. It will not be contended that even the national government could exist without collecting taxes. Taxes are bound to be collected to defray the various expenses incident to the government. Our State government can not exist without taxes. It would be without means to effectively protect life, liberty and property. The various counties and towns must necessarily collect local taxes within their jurisdiction, in order that their local government can be in condition to offer protection to the people and property thereof as the law requires them to do. The governments of the State and counties and cities are all necessary for the protection of these appellants, as well as for the protection of all other citizens. It therefore follows that it is the duty of all persons to pay such taxes as may be legally imposed, and the collection of such taxes should not be considered as harsh or oppressive. The court below, upon final hearing, adjudged as follows: "The court, being advised, adjudges that the plaintiffs are not entitled to any relief; and each of the petitions is dismissed, with judgment for defendants' costs, to which the O'Bryan, City Clerk v. City of Owensboro. plaintiffs except, and each of them pray an appeal to the court of appeals, which is granted." The judgment is now affirmed. Whole court sitting. Judges DuRelle and Burnam dissenting. Petition for rehearing by appellant overruled. CASE 83--ACTION PY THE CITY OF OWENSBORO AGAINST W. N. O'BRYAN, CITY CLERK, FOR A WRIT OF MANDAMUS.-JUNE 11. O'Bryan, City Clerk v. City of Owensboro. APPEAL FROM DAVIESS CIRCUIT COURT. JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. REVERSED. MANDAMUS-INTERVENTION-HARMLESS ERROR IN REFUSING TO PER- POWER TO PROVIDE SINKING FUND POWER TO SUBMIT QUESTION Held: 1. It seems that, in a mandamus proceeding to compel a ministerial officer to perform an alleged duty, taxpayers have no right to intervene, as the statute does not permit such intervention. 2. The error, if any, in refusing the permit the filing of a petition tendered by persons seeking to intervene, was harmless, as the petition presented no valid objection to the relief sought by plaintiff, and the effect of refusing to permit the petition to be filed was the same as sustaining a demurrer thereto. 3. Under Const., sections 157, 158. limiting the tax rate and indebtedness of cities, the limit varying according to population, as no method is provided for ascertaining the population for that purpose, the provision made for ascertaining the popula tion for the purpose of enabling the Legislature to classify the cities for the purpose of organization and government must be applied; and therefore a census may be taken by the city pursuant to an ordinance as provided by Kentucky Statutes, |