Hager v. Kentucky Title Co.

Opinion of tiie court by

JUDGE PAYNTER

Affirming.

The question involved in this case is the same as was involved in the case of Hager, Auditor, v. Louisville Title Company (this day decided), 85 S. W., 182, 27 R., 346. The reasoning and conclusion of the court in that case are applicabeto this case, except there is another question which we-will here consider. The appellee ivas created by special acts: of the Legislature passed before the adoption of the present .Constitution. It Avas gwen poAvers and privileges which real estate title insurance companies do not have under Act March 19, 189-1 (sections 725-713, Ky. St., 1903). By section 573, Kentucky Statute, 1903, provisions of charters given by the Legislature “inconsistent with the provisions of this-chapter (chapter 32 Ky. St., 1903) concerning similar corporations,” and “all poAvers, privileges, and immunities” conferred by such charters “which could not be obtained under the provisions of this chapter,” stood repealed on September 25, 1897. This chapter seems to have contained no provision for the incorporation of title companies, and the Legislature seems to have been of that opinion, because Act March 19, 1891 (Acts 1891, p. 226, c. 99), makes special provision for the incorporation of such companies. It is provided in that act (section 711) that existing corporations “transacting the business provided for in this act may * * *• * continue in business as though incorporated under this act.” It is clear from the statute that real estate title insurance companies, although acting under charters previously given, are restricted to the exercise of powers, specified in section 728.

It is argued for the Commonwealth that, because the Kentucky Title Company did not accept the present Constitution until 1903, it gets no benefit from the present legislation, and therefore it is estopped to deny that it continues to exercise the special privileges by its legislative charter and amendments thereto. If the position of counsel for the Commonwealth is correct, then a corporation which enjoys privileges under legislative charters could keep , them in force by failing to accept the Constitution, although the Legislature had repealed the acts granting them. The effect of this would be to give corporations irrevocable privileges. We are of the opinion that the appellee -is not subject to assessment of a franchise tax.

The judgment is affirmed.