
    Town of Beaver Dam, et al. v. Vinson, et al.
    (Decided March 9, 1928.)
    Appeal from Ohio Circuit Court.
    1. Pleading. — Where petition is inartfully drawn and contains nothing but conclusions of pleader, it is demurrable.
    
      2. Towns. — In action by citizens and taxpayers to enjoin collection by town of tax in addition to that authorized by Constitution, sec. 157, to liquidate indebtedness due for purchase of fire apparatus under Acts 1922, c. 136 (Ky. Stats., Supp. 1926, sec. 3704al et seq.) holder of indebtedness should be made party under Civil Code of Practice, sec. 28, since its rights were vitally affected.
    BARNES & SMITH, D. B. RHODES and GILMORE KEOWN for appellants.
    OTTO C. MARTIN and HEAVRIN & HEAVRIN for appellees.
   Opinion of the Court by

Judge Dietzman

Reversing.

In July, 1923, the town of Beaver Dam, then a city of the sixth class, purchased of the Obenchain Boyer Company a motor driven fire truck and apparatus for the sum of $2,472, of which $472 was paid in cash, the balance being payable in four equal annual installments, due one, two, three, and four years from the date of the purchase, each installment bearing interest from the date of the purchase until paid. This purchase was made pursuant to chapter 136 of the Acts of 1922, now section 3704al et seq. of the Statutes. In 1924 Beaver Dam was raised to the fifth class of municipalities, but seems not to have discovered this increase of dignity until some time after June, 1926. In 1927 there was still due and owing on the fire truck above mentioned the sum of $1,-500. The city council in that year passed an ordinance levying in addition to the tax of 75 cents on the $100 of taxable property in the town, as authorized by section 157 of the Constitution, a tax of 25 cents on the $100 of such taxable property for the purpose of liquidating the indebtedness yet due on this purchase of the fire apparatus. This suit was thereupon brought by some citizens and taxpayers of the town to enjoin the collection of this 25 cents additional tax. A demurrer having been sustained to the answer of the defendants below, appellants here, and they declining to plead further, a judgment was ■entered enjoining the collection of the tax, from which judgment this appeal is prosecuted.

The petition is very inartfully drawn and contains nothing but conclusions of the pleader. It was plainly demurrable. Whether or not the answer of the appellants supplied any missing data on which the court could properly enter a judgment enjoining the tax, we do not .at this time decide. The appellee’s theory of this-case' was, first, that the indebtedness created in tbe purchase of tbe fire truck was void from its inception because incurred in violation of constitutional limitations, and, secondly, tbe appellant town bad no right to levy any tax beyond tbe 75 cents provided for in section 157 of tbe Constitution. Manifestly, tbe rights of holders of tbe indebtedness incurred in the purchase of tbe fire apparatus are vitally involved if tbe appellees prevail on either theory of tbe case. In tbe case of Fiscal Court of Carter County v. Strother, 199 Ky. 824, 251 S. W. 1003, certain citizens and taxpayers of Carter county sought and were granted a mandamus directing tbe fiscal court to elect a county treasurer in tbe manner provided by tbe Statutes then in force. From tbe pleadings it appeared that tbe fiscal.court bad already elected a county treasurer who was performing tbe duties of tbe office, but it was alleged in tbe petition as amended that bis election was not in conformity with the Statutes. We said that, in deciding tbe case below, tbe court necessarily held that tbe election of tbe county treasurer then in office was invalid, and that as bis rights were involved tbe court should not have proceeded to judgment until be was made a party to the action. We further said:

“Section 28, Civil Code, is as follows:
“ ‘The court may determine any controversy between parties before it, if it can do so without prejudice to others; if it cannot do so, it must require such other persons to be made parties, or must dismiss tbe action without prejudice.’
“In construing this section it has been held that, although a failure to object for defect of parties is a waiver so far as tbe defendants are concerned, yet, where tbe cause is such that tbe court cannot render a decision, between tbe parties without injuriously affecting tbe rights of others who are not before tbe court, it ought not to proceed until such other persons are made parties to tbe action. Johnson v. Chandler, 15 B. Mon. 584.”

And so in tbe case before us, in granting tbe injunction sought by tbe appellees, tbe court necessarily held either that the creation of tbe indebtedness incurred when tbe fire apparatus was bought was invalid, or that the method by which tbe bolder of tbe indebtedness so incurred was to be paid was unauthorized, or both. In any such event, tbe rights of such bolder were vitally affected, and the court should not have proceeded to judgment until such holder was made a party to the action and given an opportunity to be heard. When this case is returned to the circuit court, we suggest that the petition be amended so as to show accurately the possible revenue of the town of Beaver Dam from all sources during the year 1923, including license taxes, poll taxes, franchise, and all ad valorem taxes, its indebtedness, if any, which had been created prior to the purchase of this fire apparatus, and all other pertinent facts which_ will enable the court to say what was the financial condition of the town at the time this fire apparatus was bought. Pending the trial of this action in the lower court, it will temporarily restrain the collection of this tax on such terms as to bond that court may direct.

The judgment is reversed and cause remanded for proceedings consistent with this opinion.  