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parole. In addition to the foregoing facts, he in any penitentiary, reformatory, houses of alleged that he had obeyed all the rules and regulations of the institution in which he was confined. A demurrer was sustained to the petition, and the petition dismissed. Plaintiff appeals.

In the year 1910, the Legislature enacted the Indeterminate Sentence Law, chapter 4, p. 22, Acts 1910. Under this act the jury merely found the defendant guilty, and the court sentenced him to imprisonment for a period not less than the minimum punishment nor more than the maximum punishment prescribed by law. It further provided, however, that in cases of felony punishable by death or life imprisonment, the jury should fix the punishment and the court should pronounce the sentence found by the jury. The act also contained the following provision:

"A person sentenced to life imprisonment under * * * this act shall be eligible to parole as now or may hereafter be prescribed by law."

reform or other penal institution of the state now placed, or hereafter placed, under the management or control of said board." Chapter 70, p. 197, Acts 1914. Under this act only those prisoners who had served their minimum time and obeyed the rules,, and only life prisoners who had served 8 years and obeyed the rules, were entitled to file an application for a parole, and no parole could be granted unless approved by the Governor. By an act approved March 23, 1916, the parole law was further amended so as to make eligible to a parole all prisoners who had served half their sentence with the exception of persons convicted for life or for 16 years or longer, who were not eligible unless they had served at least 8 years. This act also requires the approval of the Governor before a parole can be granted. Chapter 38, p. 428, Acts 1916.

[1, 2] In support of plaintiff's right to a mandamus, counsel for plaintiff argues as follows: Plaintiff was convicted under the Indeterminate Sentence Law of 1910. That At the same session the General Assembly law provided that a person sentenced to life passed an act, repealing the parole act of imprisonment under its provisions shall be March 21, 1900 (Acts 1900, c. 26) and confer- eligible to parole as may now or hereafter ring upon the state board of penitentiary be prescribed by law. Thereafter, and at commissioners the power to parole prisoners the same session, the Legislature made a under certain conditions (chapter 16, p. 61, Acts 1910). Section 2 of that act provided: "No person so confined shall be eligible to parole, or entitled to the provisions of this act, until he shall have served the minimum term of imprisonment provided by law for the crime for which he was so committed, except prisoners com.nitted for life, who shall have actually served five years," etc.

By an act approved March 20, 1912, the parole act of 1910 was amended, and it was provided that in all cases of felony where there was a judgment of conviction, the judge who tried the case should make a statement of all facts proven on the trial ial which he might deem important or necessary for the full comprehension of the case, which statement should be filed with the papers in the case and made a part of the record and transmitted by the clerk to the board of prison commissioners, together with a transcript of the record containing the indictment or information and the judgment rendered. The act further provided that upon the said record and the prisoner's record while under confinement, the commissioners might in their discretion grant or refuse the parole or find discharge. Chapter 144, p. 653, Acts

1912.

life prisoner who had served 5 years eligible to a parole. Plaintiff's rights were fixed by the two acts in question, and, having served for 5 years, he is entitled to a parole as a matter of right under the rule laid down in Wilson v. Commonwealth, 141 Ky. 341, 132 S. W. 557. It may be doubted if a prisoner, sentenced for life, may be said to have been convicted under the Indeterminate Sentence

Law; but, even if this be conceded for the purpose of argument, that law provided that such a prisoner was eligible to parole, "as That being true, it is clear that the act itmay now or hereafter be prescribed by law." self under which plaintiff claims to have been convicted, authorized a change in the parole law. Not only that, but it is equally clear that a prisoner has no vested right to a parole. On the contrary, a parole is a mere matter of grace, and a statute authorizing the granting of paroles may be amended or repealed at any time without violating the constitutional rights of prisoners. As a matter of fact, the parole acts of March 16, 1910, and March 20, 1912, authorizing the granting of a parole to a life prisoner, who had served 5 years, were amended by the act of March 21, 1914, which provided that a life prisoner should not be allowed to file

In the year 1914, the General Assembly passed an act repealing all acts in conflict an application for a parole until 8 years had therewith and conferring upon the state board of penitentiary commissioners, with the approval of the Governor, the power "to parole and to permit to go and remain at large, outside the buildings and inclosures of the same, any person that is now confined or that hereafter may be confined

elapsed since his confinement, and substantially the same provision was re-enacted by the act of March 23, 1916. By its very terms the act of 1914, as amended by the act of 1916, was made to apply to any person then confined, or that thereafter might be confined, in the penitentiary. It is clear, therefore,

110

that the statute applies to plaintiff; and, I relieve the circuit court of jurisdiction, since since under its provisions plaintiff was not jurisdiction does not depend on the amount entitled to file his application for a parole un- plaintiff may show himself entitled to recover, but upon the amount sued for. til he had actually served 8 years, and since 3. SCHOOLS AND SCHOOL DISTRICTS at the time of the filing of this suit he had SUPPORT OF SCHOOLS-CONSTITUTION. not served for that length of time, this fact alone is a sufficient ground for refusing the writ of mandamus.

It is true that in the cases of Wilson v. Commonwealth, supra, and Board of Prison Commissioners v. De Moss, 157 Ky. 289, 163 S. W. 183, it was held that under the parole act of 1910, a prisoner convicted under the Indeterminate Sentence Law, and who had obeyed all the rules of the institution in which he was confined, was entitled to a parole as a matter of right after serving his minimum sentence, but this view of the question was based entirely on the fact that the prisoner's sentence had not been fixed by any judicial tribunal, and his confinement after the expiration of his minimum sentence would make his punishment to that extent depend solely upon the will of the board of prison commissioners, a nonjudicial body. Board of Prison Commissioners v. Smith, 155 Ky. 425, 159 S. W. 960. In the case under consideration, however, the prisoner's punishment was not indeterminate. It was fixed by the jury at life imprisonment, and the sentence pronounced in accordance with the verdict. The continuance of his confinement after he had become eligible to a parole would not therefore place it in the power of the board of prison commissioners to fix his punishment. Furthermore, the present parole act, which as we have seen applies to plaintiff, makes the granting of paroles by the board and Governor purely discretionary, and this discretion cannot be controlled

by mandamus.

Judgment affirmed.

(180 Ky. 574)

TRUSTEES OF GRADED FREE COLORED
COMMON SCHOOLS OF CITY OF MAY-
FIELD v. TRUSTEES OF GRADED FREE
WHITE COMMON SCHOOLS OF CITY
OF MAYFIELD. *

(Court of Appeals of Kentucky. May 17, 1918.)
1. SCHOOLS AND SCHOOL DISTRICTS 110-
TAXATION-RIGHT OF TRUSTEES OF COLORED

SCHOOLS.

In an action by the trustees of the graded free colored common schools of a fourth class city against the trustees of the graded free white common schools of the city to recover the colored school's pro rata part of the total ad valorem tax collected by the white school trustees from all corporations liable to taxation in the city, the colored trustees were not limited to recover only that proportion of taxes paid by a particular corporation which its colored stockholders bore to the whole stock.

2. COURTS 121(2)-CIRCUIT COURT-JURISDICTIONAL AMOUNT-DEMURRER.

Sustaining demurrer to all the petition, except the paragraph setting forth a $13 item of the total amount sued for of $2,797.43, did not

To deny the colored schools of a city of the
fourth class participation in the revenue arising
from taxes on corporations would violate Const.
§ 183, providing that the General Assembly shall
provide an efficient system of common schools.
4. CONSTITUTIONAL LAW 220 - SCHOOLS
AND SCHOOL DISTRICTS - SUPPORT OF
SCHOOLS-EQUAL PROTECTION OF LAWS.

no tax raised from the property of any "white"
That part of Ky. St. § 3588a, providing that
corporation in a city of the fourth class shall
be used for the support of graded free colored
common schools of the city, is violative of the
equal protection of the laws clause of the state
Constitution, and therefore without force.
5. SCHOOLS AND SCHOOL DISTRICTS 110-
APPORTIONMENT OF REVENUE.

Notwithstanding Ky. St. § 3588a, as to use of tax from property of corporations for graded free white common schools, the money arising from taxation of corporations levied and collected by the white board must be apportioned between the white and colored free graded schools of a fourth class city in the ratio of the pupil children of each race to the whole number in the district; thus avoiding double taxation of corporation property, which would result from taxation by both schools.

6. TAXATION 45- PROPERTY OF CORPORA

TIONS.

The property of corporations can be taxed only in the same manner and to the same extent as that of individuals.

Appeal from Circuit Court, Graves County. Action by the Trustees of Graded Free Colored Common Schools of the City of Mayfield, Ky., against the Trustees of the Graded Free White Common Schools of the City of Mayfield, Ky. From judgment of dismissal, plaintiff appeals. Reversed, with directions to overrule demurrers, and for proceedings consistent with the opinion.

Hester & Hester, of Mayfield, for appellant. W. J. Webb and J. E. Robbins, both of May. field, for appellee.

SAMPSON, J. Mayfield is a city of the fourth class. As such it maintains a free graded school for white children and a separate. free graded school for colored pupils. This action was instituted by the trustees of the colored graded school against the trustees of the white graded school of Mayfield to recover of the latter $2,797.43, alleged to be due the colored graded school as its pro rata part of $14,226.77, the total ad valorem tax collected and appropriated by the white graded school trustees from all corporations liable to taxation in the city of Mayfield. The white board of trustees collected from the corporations of the city of Mayfield taxes amounting to $14,846.56 for certain years named in the petition. Of this sum the plaintiffs, the colored board, claim they are entitled to the 2778/14513 part thereof, or $2,659.25, there being for the said years 2,778 colored pupil children and 14,513 white pupil

For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes

Ky.)

TRUSTEES OF COLORED SCHOOLS v. TRUSTEES OF WHITE SCHOOLS

521

children in the district, the aggregate enumer- | shall be used for the support of said graded free ation for the six years named.

colored common schools of said city, nor shall colored person be used for the support of said any tax raised from the property or poll of any graded free white common schools of said city"

ment of the federal Constitution and of the Kentucky Constitution, in that it does not afford the colored schools the equal protection of the law, because it does not give to the colored pupils the same benefits under the system of taxation that is received by white pupils of the same district. It will be observed that the statute prohibits the use of taxes raised from the property of white persons or corporations being applied to the maintenance of colored schools, and a like provision is made with reference to the property of colored persons and schools, except the property of corporations is not included, for in this respect the statute provides:

[1,2] The trial court sustained a general demurrer to all paragraphs in plaintiffs' petition except the one alleging that the Young-is in violation of the Fourteenth AmendMen's Building Association, a corporation owning property in the district, some of the stockholders of which were white and others black, and which corporation had been assessed by and had paid to the white school board taxes in the sum of $71.55, and of which sum the colored board claimed its pro rata share, or $13.65. The school based its claim upon the ratio of colored pupil children in the district to the whole number of pupil children therein, but the court did not accede to this claim, but proceeded upon the theory that the colored board of education was entitled to recover that proportion only of $71.65 taxes paid by the corporation which the colored stockholders in said company "Nor shall any tax raised from the property bore to the whole stock issued and outstand-or poll of any colored person be used for the ing. This view of the trial court was erro-, support of said graded free white schools of said city" neous. No doubt the demurrer to this paragraph was overruled upon the idea that, since thus omitting the word "corporation." In it was affirmatively shown that part of the other words, the statute attempts to approstockholders of this company were black and priate all of the funds arising from tax on the part white, this paragraph of plaintiffs' peti- property of all corporations to the use and tion manifested a right of recovery to that benefit exclusively of the white schools, and part of the taxes from this corporation which this too, although the limits and boundaries corresponded to the share or proportion of the of the white school district and that of the stock so owned and held by colored persons colored school district are identical and coinonly in the company. Afterwards, as the Afterwards, as the cide in every particular. Proceeding under amount sought to be recovered in that para- this statute the board of trustees of the white graph was only $13.65, the trial court sustain- graded school of Mayfield has collected, and ed a special demurrer to the petition as it now withholds from the board of the colored then stood, and dismissed plaintiff's action graded school all revenue arising from taxes because, as it is asserted, the court did not on corporations of all kinds. have jurisdiction of the amount in controThe amount sued for was $2,797.43, which, of course, was the jurisdictional amount. The sustaining of the demurrer to all of the petition, except that paragraph setting forth the $13 item, did not relieve the court of jurisdiction. Jurisdiction in such cases depends, not upon the amount the plaintiff may show himself entitled to recover, but upon the amount sued for. Montgomery v. Glasscock, 121 S. W. 668; Denham v. Western Union Telegraph Co., 87 S. W. 788. The special demurrer should therefore have been overruled. "

The principal question presented is: Can the white graded school trustees of said city appropriate the entire revenue arising from taxes on all corporations of the city to the use of the white graded schools, and thus exclude the colored graded school and its board of trustees from the benefits of such revenue? This question has never been passed upon by this court, although in one or two instances a question much akin to this was presented and determined. The appellants, the board of trustees of the colored graded school, insist that the statutes (section 3588a) which provides in part:

"No tax raised from the property or poll of any white person or corporation in said city

It must be conceded that the property of a corporation is subject to taxation in the same manner as that of natural persons. A corporation cannot be said to have color; it is neither white nor black. Corporations are entities created by the state, and by it given a name and a situs. They are creatures of the land, and this law has its source in all the people. The commonwealth is made up of all the people, both white and black, and, so constituted, it has power and authority to grant charters to corporations and thus create these fictitious persons. While a corporation is neither white nor black, and has no politics, religion, sex, social standing, or tangible form, and cannot be classed as either belonging to the Caucasian or African race, it must nevertheless bear its share of the burden of the government. Under our law either white men or black men may organize a corporation, or men of the two races, acting jointly, may organize and Sometimes a corpoconduct a corporation. ration has a large number of stockholders, some white and some black, but to ascertain which stockholders are white and which are black would be a difficult task. With this the state has nothing to do. It does not matter one whit whether a stockholder is white or black so far as the validity and standing of

the corporation is concerned, nor as to the tax it pays or the appropriation made thereof. There appears to be no more reason to assert that a corporation belongs to the white or Caucasian race than to declare it to be of the African or negro race. It may be that most of the stockholders, or perhaps all of the stockholders, of a given corporation are white, yet these individual stockholders are separate and distinct from the corporation itself. The artificial person has a separate entity, recognized in law, distinct and apart from the stockholders or directors who organize and conduct the company or own stock in it.

is to educate all citizens of the state, to the end that they may become more efficient. The well-being of every community in the state and of the state at large is best subserved by affording every child in the commonwealth an opportunity to acquire an education.

[3] Illiteracy is the bane of society, its greatest burden and most dangerous enemy. The white race being predominant and holding most of the taxable property, under the rule already well-established in this jurisdiction of sequestering all revenue from the property of white people to the support of white schools only, a very questionable right, has decidedly the best of the situation, and it would amount to an open invasion of the Bill of Rights to hold that revenue arising from property held by legal entities, corporations, shall also be applied solely to the same end, to everlasting ruin of the colored schools. Such a rule would amount to a nullification of the underlying principles of our public school system, and render the poorest and most helpless of our citizenship, those who are and have always been the state's special object of protection and care, a hopeless burden and menacing danger, instead of an efficient and helpful contingent. To take away from the colored schools the entire benefit of revenue arising from corporations would reduce that race to the necessity of levying a tax on what little property it owns at so high a rate as to amount to confiscation and eventually lead to obliteration. If this source of revenue be denied the colored schools, it will amount to a violation of section 183 of the state Constitution, which provides that "the General Assembly shall, by appropriate legislation, provide an efficient system of common schools," because no efficient system, or system at all, could be maintained in most colored communities from the bare revenue arising from the property of colored people. The Supreme Court of the United States in the case of Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664, after quoting the Fourteenth Amendment to the federal Constitution, says:

Some of the corporations taxed in this case are foreign to the state of Kentucky. Whether their stockholders are white or black is unknown, or if part be white and part black, what proportion is the white and what black is of no concern. The statutes (section 4101), with reference to taxation for school purposes, specifically provides that the tax arising from railroads and bridges shall be apportioned between the white and colored schools in the ratio of their numerical pupilage, but no such provision is contained in the charters of fourth class cities. A large part of the school tax raised for maintaining graded schools in fourth class cities comes from the corporations, and if the white schools have exclusive right to appropriate, not only the tax from the property owned by all white citizens and taxpayers, but likewise all taxes arising from corporations included in the boundary, the colored schools must suffer grievously because the revenue arising from the assessment of property owned by colored taxpayers is less than that of the white, not to mention the greater amount derived from corporations by the white schools. In sustaining the general demurrer the trial court failed to make a necessary distinction between the taxes payable by the corporation and the taxes payable by its stockholders or directors. The stockholder lists his shares along with other intangible assets for taxation, and must pay upon his shares unless this duty is performed by the corporation for him, but in no instance is the stockholder required to list and pay taxes on the property of the corporation. This is done by the corporation. There is and can be no good reason why the revenue arising from taxation of the property of these artificial beings, these children of the state, having neither tangible form nor color, should be devoted exclusively to the education of white children. Colored children are the wards of the state in the same sense and to the same extent as are white children, and are equally entitled to care, protection, and training, and this is vouchsafed, not only by As a matter of public policy and in the our form of government, but by the express interest of peace and good order, the right terms and provisions of our federal and state to maintain separate schools for white and Constitutions. The prime object and funda- colored children has often been upheld. But

"What is this but declaring that the law in the state shall be the same for the black as for white, shall stand equal before the law of the the white; that all persons whether colored or states, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by the law because of their color? ** **The right to exemption from unfriendly legislation against them distinctively as colored, exempt from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.'

Neither has the question of the right of a[ CLAY, C. On January 26, 1891, Thomlocal community by vote to supplement its as Little, for the recited consideration of school fund by an additional tax for the $212.50 cash, and $312.50 to be paid Novembetterment of its schools, any bearing upon ber 1, 1891, but for an actual consideration the questions involved in this case. It can of $100 cash, and three notes, one for $51.50, not be maintained that the corporations have another for $262.50, and a third for $100, voted a tax or participated in an election payable at different times, conveyed to Richlooking to the supplementing of the school ard Roberts and his wife, Mary Roberts, a fund. Especially is this true of a foreign tract of land in Pike county containing 143 corporation. acres, more or less. A lien was reserved to [4-6] That part of the statute (section secure the deferred payments. Shortly 3588a) which attempts to appropriate the thereafter Richard Roberts died, and W. J. whole of the moneys arising from tax on Roberts, who was appointed and qualified corporations to white schools is violative of as his administrator, brought suit against the equal protection clause of the Constitu- the widow and children of the decedent, tion, and therefore without force, and the and Thomas J. Little and other creditors, money thus arising must be apportioned between the two schools in the ratio of the pupil children of each race to the whole number in the district. This must follow because the property of corporations cannot be subjected to double taxation; it must not be subjected to taxation by both schools because that would amount to double taxation, and the amount levied and collected by the white board must therefore be apportioned between the two schools in the ratio of the pupil children of each to the whole. This rule must obtain because the property of corporations can only be taxed in the same manner and to the same extent as individuals, and, since the property of individuals, belonging to each race, can only be subjected to taxation by one of the schools, it follows that the property of corporations must be treated in like manner.

to

Judgment reversed, with directions overrule each of the demurrers, and for pro

ceedings consistent herewith.

(180 Ky, 629)

for a settlement of the estate, alleging that the decedent owned four tracts of land on which Thomas J. Little and other creditors had vendors' liens, and that the personal property of the decedent was insufficient to pay his debts, and asked a sale of so much of the land as was necessary to pay the debts. Mary Roberts was served with process, and filed an answer asserting homestead in the land which she occupied. The case was referred to the master commissioner to hear proof and make a report as to the liens on the land and other debts, and as to the amount of personal property left by the decedent. He was also directed to file an accurate description of the decedent's lands. Thomas J. Little filed a petition and claim before the commissioner for the purchasemoney notes sued on the tract of land conveyed by him to Richard Roberts and Mary Roberts, and asserted a vendor's lien thereon. claim of Thomas J. Little, and also other The commissioner filed a report allowing the claims aggregating the sum of $1,375.89, without interest. This report was confirmed. An order was then entered reciting the fact that there was not enough personal property to pay the debts and ordering a sur376-vey of the lands by W. J. Roberts. The latter surveyed the land of the decedent in nine tracts, and filed a report accurately describing each tract. Tract No. 7 as described in that report is the tract of land conveyed by Little to Richard Roberts and wife. A judgment of sale was then rendered. In this judgment it was adjudged that it was necessary to sell the decedent's lands in order to pay his debts. Thomas J. Little was adjudged a lien on tract No. 7 for the sum of $440 as reported by the commissioner. A. J. Newson was adjudged a lien on tracts Nos. 1 and 2 for $316.40. James I. Roberts was also adjudged a lien on the same tracts for $268. Tracts Nos. 2 and 7 were ordered sold to satisfy the liens thereon. The other lands of the decedent, or enough to pay his debts, were ordered sold subject to the widow's dower or homestead. At that time his debts, with, interest, aggregated $1,594.94. Lot No. 7 was sold to Thomas Little for the

ROBERTS v. ROBERTS. (Court of Appeals of Kentucky. May 21, 1918.) EXECUTORS AND ADMINISTRATORS 376 ADMINISTRATORS SALE-RIGHTS OF SURVIVING WIFE. Where petition by administrator for settlement of deceased husband's estate set up lien of vendor for land conveyed to husband and his wife, and the wife was served with process in the settlement suit, but filed no exceptions to either judgment or report of sale of land to pay the lien, and the sale was confirmed, the proceedings in settlement suit are a bar to the wife's right to maintain a suit to set aside commissioner's deed to such tract, it being unnecessary to issue process on pleading filed by vendor, since he merely asked the enforcement of his lien, to satisfy which the court had power, under Civ. Code Prac. § 692, to order a sale, although no pleading had been filed by the lien

claimant.

Appeal from Circuit Court, Pike County. Suit by Mary Roberts against John Roberts. Judgment for defendant, and plaintiff appeals. Affirmed.

Stratton & Stephenson, of Pikeville, for appellant. Cline & Steele, of Pikeville, and W. H. May, of Jenkins, for appellee.

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