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parole. In addition to the foregoing facts, he 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 pa
role as now or may hereafter be prescribed by law.”
At the same session the General Assembly passed an act, repealing the parole act of March 21, 1900 (Acts 1900, c. 26) and conferring upon the state board of penitentiary commissioners the power to parole prisoners 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 committed 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 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.
In the year 1914, the General Assembly passed an act repealing all acts in conflict 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
in any penitentiary, reformatory, houses of 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 law provided that a person sentenced to life imprisonment under its provisions shall be eligible to parole as may now or hereafter be prescribed by law. Thereafter, and at the same session, the Legislature made a 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 W. 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 may now or hereafter be prescribed by law.” That being true, it is clear that the act itSelf 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 an application for a parole until 8 years had 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 confin-, ed, in the penitentiary. It is clear, therefore,
that the statute applies to plaintiff; and, Since under its provisions plaintiff was not entitled to file his application for a parole until he had actually served 8 years, and since at the time of the filing of this Suit he had 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.
(180 Ky. 574)
TRUSTEES OF GRADED FREE COLORED COMMON SCHOOLS OF CITY OF MAYFIELD 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 @:110TAXATION-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
relieve the circuit court of jurisdiction, since jurisdiction does not depend on the amount plaintiff may show himself entitled to recover, but upon the amount sued for.
3. SCHOOLS AND SCHOOL DISTRICTs 3:110– SUPPORT OF SCHOOLS-CONSTITUTION. 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. That part of Ky. St. § 3588a, providing that no tax raised from the property of any “white” 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 3:110APPORTIONMENT 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 C-45 - PROPERTY of CoRPoRATIONS. 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 Mayfield, 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 separatefree 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
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Ky.) TRUSTEES OF CoLoRED scHools v. TRUSTEES OF WHITE scHools 521
children in the district, the aggregate enumeration for the Six years named. [1,2] The trial court Sustained a general demurrer to all paragraphs in plaintiffs' petition except the one alleging that the Young Men'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 bore to the Whole Stock issued and OutStanding. This view of the trial court was erroneous, No doubt the demurrer to this paragraph was Overruled upon the idea that, since it was affirmatively shown that part of the stockholders of this company were black and part white, this paragraph of plaintiffs' petition manifested a right of recovery to that part of the taxes from this corporation which corresponded to the share or proportion of the Stock So Owned and held by Colored perSonS only in the company. Afterwards, as the amount sought to be recovered in that paragraph was only $13.65, the trial court Sustained a special demurrer to the petition as it then stood, and dismissed plaintiff’s action because, as it is asserted, the court did not have jurisdiction of the amount in controversy. The 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
shall be used for the support of said graded free colored common schools of said city, nor shall any tax raised from the property or poll of any colored person be used for the support of said graded free white common schools of said city” —is in Violation Of the Fourteenth Amendment 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: “Nor shall any tax raised from the property or poll of any colored person be used for the #" of said graded free white schools of said C1 —thus omitting the word “corporation.” In Other Words, the statute attempts to appropriate all of the funds arising from tax on the property of all corporations to the use and benefit exclusively of the white schools, and this too, although the limits and boundaries Of the White School district and that Of the Colored School district are identical and coincide in every particular. Proceeding under this statute the board of trustees of the White graded School of Mayfield has collected, and nOW Withholds from the board Of the Colored graded school all revenue arising from taxes On corporations of all kinds. 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 conduct a corporation. Sometimes a corporation 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 to be of the African or negro race.
the corporation is concerned, nor as to the is to educate all citizens of the state, to the tax it pays or the appropriation made there- end that they may become more efficient. The of. There appears to be no more reason to well-being of every community in the state assert that a corporation belongs to the and of the state at large is best Subserved white or Caucasian race than to declare it. by affording every child in the common
It may wealth an opportunity to acquire an educa
be that most of the stockholders, or per-, tion.
haps all of the stockholders, of a given corporation are white, yet these individual stockholders are separate and distinct from the corporation itself. 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. 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
The artificial person
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 our form of government, but by the express terms and provisions of our federal and state Constitutions. The prime object and funda
 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:
“What is this but declaring that the law in the state shall be the same for the black as for the white; that all persons whether colored or white, shall stand equal before the law of the 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.”
As a matter of public policy and in the interest of peace and good Order, the right to maintain separate schools for white and colored children has often been upheld. But Neither has the question of the right of a local community by vote to supplement its school fund by an additional tax for the betterment of its schools, any bearing upon the questions involved in this case. It cannot be maintained that the corporations have Voted a tax or participated in an election looking to the supplementing of the school fund. Especially is this true of a foreign. COrporation. [4-6] That part of the statute (section 3588a) which attempts to appropriate the Whole of the moneys arising from tax on corporations to White schools is violative of the equal protection clause of the Constitution, and therefore Without force, and the 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. Judgment reversed, with directions to Overrule each of the demurrers, and for proceedings consistent herewith.
ExECUTors AND ADMINISTRATORs &376– 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.
(Court of Appeals of Kentucky.
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.
CLAY, C. On January 26, 1891, Thomas Little, for the recited consideration of $212.50 cash, and $312.50 to be paid November 1, 1891, but for an actual consideration of $100 cash, and three notes, one for $51.50, another for $262.50, and a third for $100, payable at different times, conveyed to Richard Roberts and his wife, Mary Roberts, a tract of land in Pike county containing 143 acres, more or less. A lien was reserved to secure the deferred payments. Shortly thereafter Richard Roberts died, and W. J. Roberts, who was appointed and qualified as his administrator, brought suit against the widow and children of the decedent, and Thomas J. Little and other Creditors, 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. The commissioner filed a report allowing the Claim Of Thomas J. Little, and also Other 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 Survey 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
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