boards of council of fourth class cities by ordinance to "exempt manufacturing establishments and the machinery from taxation for a period not exceeding five years from the establishment in such city." Pursuant to this statute, the ordinance in question was adopted. In the case of Victor Cotton Oil Co. v. City of Louisville, 149 Ky. 149, 148 S. W. 10, the question arose whether the property of the Victor Cotton Oil Company was exempt from taxation under an ordinance of the city of Louisville passed pursuant to section 170 of the Constitution, and section 2980a, Kentucky Statutes. It appeared that the Globe Refining Company had ceased to do business, and its plant would have been dismantled had it not been for its purchase by the Victor Cotton Oil Company, a new corporation. In holding that the property of the Victor Cotton Oil Company was not exempt from taxation, the court said:

made party defendants. To the petition the Ashland Leather Company filed a demurrer, which does not seem to have been acted upon, Thereafter the Ashland Leather Company and the mayor and members of the board of council, filed separate answers, pleading, in substance, that the property of the company was exempt from taxation by virtue of the ordinance adopted November 8, 1911. On June 13, 1916, the Ashland Leather Company filed an amended answer, pleading that at a regular meeting of the board of council held on June 5, 1916, said board duly assessed all of the property of the company for the years 1912, 1913, and 1914, 1915, and 1916, and directed the city collector and city attorney to collect of the company the taxes so assessed for said years. Thereupon plaintiff filed a reply, pleading that by the resolution of June 5, 1916, the property of the company was assessed for the year 1912 at $10,000, and for the years 1913, 1914, 1915, and 1916, at "The plain purpose of the ordinance, as well $75,000; that the actual cash value of the as the constitutional provision, is to induce the company's property on April 1, 1912, was location of new manufacturing enterprises in the $624.500, on April 1, 1913, $924,500, on April, Constitution, the statute, or the ordinance that city. It was not contemplated by either the 1, 1914, $1,020,300, on April 1, 1915, $1,030,- manufacturing establishments, already estab300, and on April 1, 1916, $1,075,300; and lished in the city, shall be exempt from taxation that the assessed value placed on said proper- for five years, when they change hands. The ordinance contemplates the exemption of new manty for the years in question was many thou-ufacturing enterprises; and the immunity from sand dollars less than its fair cash value taxation is allowed to induce their location in for those years, and that the assessments the city. It does not include manufacturing eswere made in a lump sum, without notice to the Ashland Leather Company, without obtaining any information as to the value of the property, and without a separate finding of the value of the different items constituting such property. He further pleaded that the resolution of the board was fraudulent, and was the result of fraud, covin, and collusion between it and the Ashland Leather Company; that the action of the board in assessing the property of the company for taxation at many thousand dollars below its cash value was illegal and void, in that it was arbitrary and capricious, and evinced a purpose to evade due and faithful performance of its duty, and was taken for the purpose of and with the fraudulent intent to anticipate the rulings of the court. It was further charged that the acts of the board were done viciously, maliciously, and willfully, for the purpose of cheating the city and board of education out of large sums due by the defendant as taxes for the years in question. Thereupon the court sustained a demurrer to the reply and dismissed the petition. Elam appeals.

[1] 1. The first question presented is, Was the exemption ordinance valid? Section 170 of the Constitution provides:

"The General Assembly may authorize any incorporated city or town to exempt manufacturing establishments from municipal taxation, for a period not exceeding five years, as an inducement to their location."

Pursuant to the above provision, the Legislature enacted subsection 32, section 3490,

tablishments already in the city, although for taxation are strictly construed. They are never any reason not in operation. Exemptions from construed as including things not fairly within the meaning of the words read as they are written."

Here the Ashland Leather Company did not establish a new manufacturing enterprise in the city of Ashland. Though the principal portion of its plant had been destroyed by fire, several substantial buildings remained intact. While several new buildings were erected and the plant greatly enlarged, this was only a reconstruction of the business already located in Ashland and a continuation of the old business thereafter established. Since the exemption is granted as an inducement to the location of new manufacturing enterprises, we are not prepared to depart from the rule that exemptions from taxation should be strictly construed, and hold that the exemption may be grant ed to a manufacturing concern already located as an inducement to continue in the city and not move its plant elsewhere. We therefore conclude that the exemption ordinance is invalid on the ground that it is not authorized by the Constitution.

[2] 2. The next question is whether the board of council is charged with the duty of assessing the property in question. Section 3542, Kentucky Statutes provides:

taxation has not been listed, the council may as"If for any reason, any property subject to sess same; (but it) may not be taxed or listed for more than five (5) years.

The point is made that because of the use

* **

the council is one which it may or may not held in the case of Dillon v. Bare & Carter, exercise in its discretion. The general rule 60 W. Va. 483, 56 S. E. 390, that mere coloris that permissive words in respect to courts able action of an officer or board clothed or officers are imperative in those cases in with discretionary power, plainly arbitrary which the public or individuals have a right or capricious and evincing a purpose to that the power so conferred be exercised. evade due and faithful performance of duty, Sutherland's Statutory Construction, p. 597. constitutes no bar to an application for a In Supervisors v. United States, 4 Wall. 435, writ of mandamus to compel action in good 18 L. Ed. 419, the statute involved provided: | faith, but mandamus will not be awarded for "The board of supervisors * may, if such purpose, unless it appears that the offideemed advisable, levy a special tax. cer or board has clearly and willfully disre garded his or its duty, or that the action was extremely wrong or flagrantly improper and unjust, so that the decision can only be explained as the result of caprice, passion, partiality, or corruption. People ex rel. Green v. Board of Commissioners, 176 Ill. 581, 52 N. E. 336, we find the following:

The court said:

*

"The conclusion to be deduced from the authorities is that where power is given to public officers, in the language of the acts before us, or in equivalent language, whenever the public interest or individual rights call for its exercise, the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his."

To the same effect is Gallup v. Smith, 59 Conn. 354, 22 Atl. 334, 12 L. R. A. 355, and 22 Cyc. 590. We are therefore of the opinion that the statute in question imposes on the council the mandatory duty to assess any property subject to taxation that has not been listed.

[3] 3. Since the property of the Ashland Leather Company was subject to taxation and had not been listed, and the statute imposes on the council the clear legal duty to assess the property, and no appeal or other adequate remedy is provided in case the council refuses to act, it cannot be doubted that mandamus will lie to compel action by the council. Fowler v. City of Oakdale, 158 Ky. 603, 166 S. W. 195; City of Newport v. Board of Education & City of Newport, 159 Ky. 379, 167 S. W. 396; Morgan et al. v. Champion, 150 Ky. 396, 150 S. W. 517.

[4] 4. There is no merit in the contention that plaintiff could not maintain this action. Without entering into a discussion of the question, it is sufficient to say that he is a citizen and taxpayer of the city of Ashland, and, as a member of the public, is interested in having all the property in the city subject to taxation properly assessed, and his right to apply for a writ of mandamus in behalf of himself and all other taxpayers is settled by the opinions of this court in the cases of Louisville Home Telephone Co. v. City of Louisville, 130 Ky. 611, 113 S. W. 855, and Gay v. Haggard, 133 Ky. 435, 118

S. W. 299.

[5] 5. In view of the foregoing conclusions, it necessarily follows that plaintiff was entitled to the writ applied for unless the action of the council, while the proceeding was pending, operated to deprive the court of the power to issue the writ. It may be conceded that mandamus will not lie to control or review the exercise of the discretion of any board, or officer, when the act complained of is either judicial or quasi judicial. Houston v. Boltz, 169 Ky. 640, 185 S. W. 76. But this

In the case of

"In Illinois State Board of Dental Examiners v. People, 123 Ill. 227, 13 N. E. 201, this court said (page 241, 123 Ill., and page 202, 13 N. E.): If a discretionary power is exercised with manifest injustice, the courts are not precluded from commanding its due exercise. They will interfere where it is clearly shown that the discretion is abused. Such abuse of discretion will be controlled by mandamus. A public officer or inferior tribunal may be guilty of so gross an abuse of discretion or such an evasion of positive duty as to amount to a virtual refusal to perform the duty enjoined, or to act at all in contemplation of law. In such a case mandamus will afford a remedy. Tapp, Mand. 19, 66; Woods, Mand. 64; Commissioners v. Lynah. 2 McCord, 170; People v. Perry, 13 Barb. 206; Arberry v. Beavers, 6 Tex. 457 [55 Am. Dec. 791]."

In the case of the State Board of Equalization v. People, 191 Ill. 528, 61 N. E. 339, 58 L. R. A. 513, the court said:

* * *

Of

"We have repeatedly held that an assessment may be impeached on the ground that property has been fraudulently assessed at too high a rate. In Pacific Hotel Co. v. Lieb, 83 Ill. 602, we say (page 609): 'Where the valuation is so grossly out of the way as to show that the assessor could not have been honest in his valuation-must reasonably have known that it was excessive-it is accepted as evidence of a fraud upon his part against the taxpayer, and the court will interpose.' And in Chicago, B. & Q. R. Co. v. Cole, 75 Ill. 591 (on p. 594): 'Valuations must be the result of honest judgment, and not of mere will.' The converse of the proposition must be true, and an assessment may be impeached where the assessment has been fraudulently made at too low a rate. the seven corporations which were assessed at same amount, the People's Gaslight & Coke Company was one. That company filed with the auditor a statement, which was sworn to by its secretary, on the 17th day of November, 1900, and after the commencement of this suit. This statement was laid before the state board of equalization by the auditor at the time the property of said corporation was assessed. The statement showed the amount of capital stock paid up to be $28,668,800, the amount of indebtedness to be $34,000,000, and the total value of the tangible property to be $15,526,785. The aggregate amount of the value of the capital stock and the indebtedness, less the tangible property, amounted to $47,142,015, one-fifth of which would be $9,428,403, and was the amount, under the law, which should have been certified to the county clerk of Cook county, on which said clerk should have extended the taxes of

within the statutory authority given to it in the management of the town's affairs, its acts are not subject to judicial investigation or control. It cannot be required to act in any particular manner upon any subject with which it has a right to deal, and the aid of a court can be invoked only when it has refused to act at all, or acts arbitrarily, or beyond the scope of its statutory authority."

worth par. The evidence showed, however, the same to be worth $106.50 per share, which fact should have materially increased its assessment. The amount, however, assessed against said company by the state board of equalization was $450,000, or $8,978,403 less than the company's own statement subscribed and sworn to by its own secretary, showed to be the amount for which it should have been assessed. The assessment of this corporation is a fair illustration of the assessments made by the state board In the case under consideration, the council of equalization against the other six companies assessed the property for the years in queswhich it assessed. It was the duty of the state tion during the pendency of the suit. It apboard of equalization to assess the capital stock, including the franchises, of said corporations pears from the reply that the property was at the fair cash value thereof. Instead of doing assessed for each of the years in a lump sum, so, the respondents arbitrarily and willfully and no effort was made to obtain any inforfailed to follow a proper and long-established mation as to the value of the property or to rule in force in this state for making such assessments, by refusing to take into considera- separate the items of which the property was tion, in making such assessments, the bonded composed. It further appears that the acindebtedness of said corporations. They also tual cash value of the property was many disregarded all other rules for the making of such assessments in force at the time of the times more than the value for which it was filing of this petition, and for the purpose of assessed. It is charged that the resolution evading their duty sought to pass new rules for of the board was the result of fraud, covin, their government in making said valuations and assessments, and refused to consider the infor- and collusion between it and the Ashland mation then before them, furnished to them by Lumber Company; that the action of the the assessors, as provided by statute, and as- board was arbitrary and capricious, and sessed the capital stock and franchises of said evinced a purpose to evade due and faithful corporations at a nominal sum, instead of at the fair cash value thereof. While it is true that performance of its duty; and that it was fraud will not be presumed, and that the deci- taken for the purpose of and with the fraudsion of the state board of equalization in fix-ulent intent to anticipate the rulings of the ing the value of corporate property for the purpose of taxation is quasi judicial in its nature, court. It was also averred that the acts of still, when it is apparent to the court that every the board were done viciously, maliciously, well-known rule for the valuation of capital and willfully for the purpose of cheating the stock, including franchises, has been violated and arbitrarily disregarded by the board, and city and board of education out of large sums such board has refused to consider the state- due as taxes for the years in question. The ments as to values prepared by the assessors, demurrer admits these allegations to be true; under the statute, for its use, and has refused to consider information as to the value of such and, if they be true, it is manifest that the corporate property submitted to it by interested members of the council, in making the assessparties, and has arbitrarily fixed such assessments in question, were guilty of such fraudments at a grossly inadequate sum under rules ulent, capricious, and arbitrary conduct, and passed by it for the occasion, the court is jus- of such gross abuse of discretion, as to tified in holding that fraud in the making of such assessments has been established, and such amount to a virtual refusal to assess the proppretended assessments may be properly disre- erty. In other words, the result is the same garded and treated as no assessments, and such as if they had never made the assessments, board be coerced by the writ of mandamus to assess such property." and the court may disregard their action and require them to meet and assess the property. For these reasons it follows that the court erred in sustaining the demurrer to the reply and dismissing the petition.

The same doctrine is recognized in the case of Clay City v. Roberts et al., 124 Ky. 601, 99 S. W. 653, 90 Ky. Law Rep. 820, where the court said:

"The council constitutes the legislative branch of the town government, and as long as it acts

Judgment reversed, and cause remanded for proceedings consistent with this opinion.

1. APPEAL AND ERROR 870(2)-WAYSIDE evidence defendant made a motion for directBILL OF EXCEPTIONS-MOTION FOR DIRECT ED VERDICT.

ed verdict, and at the conclusion of all the evidence a like motion was made. These motions were overruled. The jury returned a verdict in favor of the plaintiff for $2,000, and defendant made a motion for a new trial, assigning as grounds therefor the action of the trial judge in overruling its motions for a directed verdict. There was no complaint Error, if any, in overruling motion for di- in this motion of the action of the trial judge rected verdict is not waived by failure to ex-in overruling the motions for a directed vercept to a subsequent order restoring the case dict in the previous trial. to the docket for retrial. 3. APPEAL AND ERROR

Appeal from Circuit Court, Knox County; the trial judge in overruling the motions for Von A. Huffaker, Judge.

quent proceedings that would affect errors alleged in the first proceedings. If the motion for a new trial shown upon the bill of exceptions preserved to the second trial should have been granted, it would not affect the errors alleged to exist as a result of the first trial. What was done during the first trial was beyond the control of the judge, and nothing which counsel or the court could do could change it. We think the course of practice followed in the court below was the correct one in cases like this.

only a question of law for the court and not | No error could be predicated upon subsea disputed question of fact for the jury, was adopted. The question of law in such cases cannot exist apart from the evidence in the case, and it was early held that a motion for a new trial was necessary in order to review in this court the action of the trial judge in granting or overruling motions for directed verdicts. Seymour v. Railroad, 117 Tenn. 98, 98 S. W. 174. And later it was held in Barnes v. Noel, 131 Tenn. 127, 174 S. W. 276, that a wayside bill of exceptions can be taken to preserve the action of the trial judge on the first trial in overruling a motion for a directed verdict, and errors could be assigned in this court upon such action. Following this case, Bostwick v. Thomas, 137 Tenn. 99, 191 S. W. 968, held that a motion for a new trial was necessary where the trial judge overruled a motion for peremptory instructions on the first trial, but later, on a motion for new trial, set aside the verdict, and sustained the motion for directed verdict. In Construction Co. v. Pundt, 136 Tenn. 328, 189 S. W. 686, it was held that a suc- CITY OF BRISTOL et al. v. BOSTWICK cessful plaintiff might take a wayside bill of exceptions to the action of a trial judge in granting defendant a new trial and assign errors upon such action in this court, although the subsequent trial resulted in plaintiff's favor.

[1, 2] From these cases we think it is clear that a wayside bill of exceptions may be taken preserving the action of the trial judge in overruling a motion for a directed verdict

and a motion for a new trial based thereon, and errors assigned in this court upon such action, although the jury failed to agree upon and report a verdict in the case. If the motion for directed verdict is well taken when made, either at the close of plaintiff's testimony or at the close of all the testimony, the effect of such a motion is to end the suit before it is submitted to the jury. The fact that the jury, when the case is submitted to it, fails to reach a verdict can in no wise deprive defendant of the benefit of his motion for a directed verdict. Nor do we think that a failure to except to a subsequent order restoring the case to the docket for retrial is a waiver of the motions for a directed verdict. No good purpose could be served by excepting to such an order, inasmuch as the trial judge had previously overruled the motions for directed verdict and new trial. The regular and ordinary course of procedure in the trial court required that the case be restored to the docket for retrial after the judge's action upon the motions.

The Court of Appeals pretermitted a decision upon the question of practice herein discussed, and affirmed the case upon the merits. We have examined the record and concur in the action of that court and the trial court. Affirmed.

et al.

(Supreme Court of Tennessee. Feb. 27, 1918.) 1. MUNICIPAL CORPORATIONS 348-PUBLIC BUILDINGS BONDS OF CONTRACTORS-RIGHT TO SUE.

Where a contractor on a public building gave a bond securing performance and also payment of materialmen and laborers, and he defaulted in both respects, the city could sue on its own claim for the additional cost of completion, and also in behalf of the laborers and materialmen whose claims were unpaid. 2. MUNICIPAL CORPORATIONS 346-PUBLIC BUILDINGS-BONDS OF CONTRACTORS.

Where contractor on a public building executed a bond for performance and on his telegraphic request, after advice of the city attorney, the surety by wire consented to insert the words, "and pay for all materials and labor," as required by Acts 1899, c. 182, such addition became a part of the contract, and the bond validity secured both performance and payment for materials and labor.

3. CONTRACTS 147(2)-CONSTRUCTION.
It is the duty of the court primarily to con-
strue every contract to effectuate the intention
of the parties, though it may be necessary to ig-
nore apparently inconsistent language.
4. MUNICIPAL CORPORATIONS 346-PUBLIC
BUILDINGS-BONDS OF CONTRACTORS.

Mere fact that a contractor's bond, securing both performance, under Acts 1915, c. 192, Acts 1899, c. 182, was in a penalty larger than and also payment for labor and materials, under that required by the act of 1899 did not indicate that the parties were unmindful of the latter statute.

5. MUNICIPAL CORPORATIONS 347(1)—PUB-
LIC BUILDINGS CONTRACTOR'S BONDS
LIENS OF LABORERS-TIME TO FILE.
Where contractor on public building was
enjoined from continuing contract, filing of la-
bor and material claims within 30 days from
such injunction was sufficient compliance with
Acts 1899, c. 182, § 4, requiring such claims to
be filed within 30 days after completion of the

[3] It was not necessary for defendant to include in his motion for new trial at the last trial the failure of the trial judge to award a new trial upon the first trial. The cases cited, supra, show that the assignments in 6. PLEADING 214(1) - DEMURRER-AFFECT. this court are predicated upon the alleged er- All averments of the petition must be taken rors shown by the wayside bill of exceptions. as true on demurrer.

contract.