tion to others is not a sufficient reason for requiring the owner of such vehicles for hire to test and ascertain the competency and skill of every customer before intrusting him with the custody of a car. Nothing of this manifest want of prudence, while the incompetent or negligent is the is shown in this case now under considera- exception. The fact that here and there a tion. Kraft, the hirer, is shown to have driver carelessly or recklessly converts his been a man accustomed to the use of auto-vehicle into an engine of injury or destrucmobiles. True, he had not before used a Ford car, but he had operated several others, and with the explanation and instruction which it is conceded he received concerning the manner of handling this car, we are disposed to hold that defendants cannot be charged with any failure of duty to the plaintiff or to the public in permitting him to drive it. To say otherwise and hold with plaintiff's contention would be to extend the law of liability for negligence to an unprecedented degree, and to place a ruinous burden upon the business of letting vehicles for hire. Our attention is also called to the case of Tuller v. Talbott, 23 Ill. 357, 76 Am. Dec. 695, where the driver of a stagecoach placed the reins in the hands of a passenger by whose negligence another passenger in the coach was injured, and the owner was held to respond in damages. This and other similar cases cited are to be classed with the English precedents above referred to, and are not here in point. The owner of the stage line was a common carrier of passengers. The passenger who was injured had no control over the driver. The owner was in duty bound to protect the passenger against the negligence of the servant, and the act of the servant in passing the reins to a third person was in legal effect the act of the owner, who thereby became responsible for the negligence of the substituted driver. The defendants in this case were not carriers. They let their vehicles for hire, assuming no responsibility for negligence or recklessness of the hirer, save, perhaps, under exceptional circumstances such as we have already adverted to. In the absence of evident unfitness of a customer applying for a vehicle, we see no reason why the owner should be held to make an investigation into his qualifications as a driver. II. It is next said that an automobile is of such character that while, perhaps, not per se a dangerous instrument, it may easily become such, and the owner is therefore bound to the exercise of greater care than would be required were there less danger in its operation. There is more or less danger in the use of vehicles of any kind. The motor cycle, the bicycle, the stagecoach, the ordinary carriage drawn by horses, all have their possibilities of peril, and there is room for difference of opinion concerning the various degrees of danger to be apprehended therefrom. The great body of those who use the various instrumentalities of travel are persons of ordinary prudence, Nor is there any likeness, as counsel seems to think, between this case and that of the livery stable keeper who wilfully lets for hire an animal he knows to be vicious or dangerous. If the car in this case was defective in some respect, which rendered it incapable of control or made it a source of special danger, and defendants had allowed it to go out in that condition and thereby plaintiff had been injured, a very different question would be presented. But so far as shown the car was in perfect condition, and the sole cause of plaintiff's injury was the carelessness or forgetfulness of Kraft, who, in an emergency, threw a lever the wrong way, thereby causing a sudden acceleration of speed instead of checking it as he intended. Had he been driving a hired team and in some way had heedlessly got the reins crossed in his hands, thereby running over and injuring the plaintiff, counsel would hardly advise his client that the owner of the outfit was liable in damages for the hirer's negligence. The fact that the vehicle in this case happens to have been an auto car instead of a horse and buggy or a coach and four calls for the application of no different rule. The testimony in the case discloses no cause of action against the appellees, and the judgment below is therefore affirmed. owner cannot by contract confer a right of, subrogation to the claims of the public upon a stranger who pays his taxes at his request, which will preserve a lien superior to that of existing mortgages on the property, although the tax collector attempted to preserve the lien by an assignment on the tax books. A (December 18, 1914.) PPEAL by petitioner from a judgment of the Criminal, Common Law, and Equity Division of the Circuit Court for Kenton County, dismissing a petition filed to obtain subrogation to the liens of the which proves defective, to be subrogated to such lien or encumbrance, see notes in 5 L.R.A. (N.S.) 838, 46 L.R.A. (N.S.) 1049; and 50 L.R.A. (N.S.) 489. As to right of surety to be subrogated to priority of state or United States in payment from assets of debtor, see note in 29 L.R.A. 240, 248. And generally as to right of one paying stranger's debt to be subrogated to the right of the creditor, see notes in 23 L.R.A. 124, and 16 L.R.A. (N.S.) 233. The present note is confined to cases in which the one paying the taxes of another had and claimed no interest in the property to protect. Cases are therefore excluded where the tax was paid by a mortgagee, vendee, or other person having an interest in the property, or by one claiming or believing at the time he paid the tax that he had an interest, even though it afterward proved that he had no interest. The note does not include cases passing upon the question as to the right of subrogation of a purchaser at a tax sale (see note to Holland v. Hotchkiss, L.R.A.1915C, 492, as to right of purchaser at invalid tax sale to reimbursement for taxes paid as a condition of equitable relief); neither does it include cases dealing merely with the right of the one paying the tax to recover the same in a proper action from the taxpayer, as subrogation to the rights of the public in respect to taxes paid involves, of course, more than the mere right of recovery from the taxpayer or the right to an equitable lien on land. No case has been found in which the facts were similar in all respects to those in GIBSON V. WESTERN & S. L. INS. Co., but the decision in that case appears to be in accord with the principles declared in the majority of the cases passing upon the question of subrogation to the rights of the public of one who voluntarily advances money to pay taxes on land in which he has and claims no interest. In these cases generally, however, there was no agreement for subrogation, and no attempted assignment of the tax lien, as in the reported case. But there is authority for the proposition that without a statute authorizing them to do so, officials cannot assign a tax lien; and in Mersick v. Hartford & W. H. Horse R. Co. 76 Conn. 11, 100 city, county, and state for taxes paid by petitioner, and to have her lien adjudged superior to those of existing mortgages on the property. Affirmed. The facts are stated in the Commissioner's opinion. Mr. A. E. Stricklett, for appellant: Petitioner is not a stranger, intermeddler, or a volunteer, because the taxes upon the parcels of real estate were paid at the instance of the owner of the property, and inured to the benefit of the mortgagees, thereby removing her from the rule of a mere volunteer, stranger, or intermeddler. Wilkins v. Gibson, 113 Ga. 31, 84 Am. St. Am. St. Rep. 977, 55 Atl. 664, where taxes of a railroad company were paid by one who the court said was under no obligation to pay them, but who was, it appears, a bondholder of the company, subrogation was denied although there was an understanding between the company and the party paying the taxes that the latter might hold the amount paid as a preferred claim to the same extent as the state treasurer (to whom the taxes were paid) might have held it had payment not been made. In this case the court said that it was the duty of the company to pay the tax; that another at its request had paid the debt, and that the company could not by agreement give him a lien on the mortgaged property which would take precedence over that of the bondhold ers; also that the transaction was a loan, and the lender did not acquire such lien upon the mortgaged property as the state may have had. But a tax collector of a town was allowed, it appears, in a district court case in Massachusetts, Re Grant, 14 Am. L. Rev. 801, to prove, as a privileged claim against the estate of a bankrupt, taxes advanced by him for the bankrupt under an agreement made between the collector and the assignee that if the former would advance the amount of the tax, in order to secure the discount allowed if it was paid before a certain day, he might stand in the place of the town assessing the tax. In Shanks v. Stephens, 4 Ky. L. Rep. 838 (abstract), it is said: "A party who has paid taxes for another, and taken his obligation for the amount so paid, is not entitled to be substituted to the rights of the state, but his claim stands on the footing of an ordinary debt." son who And in Kocher v. Kocher, 56 N. J. Eq. 547, 39 Atl. 586, it was held that a loaned money to his father to pay benefit assessments which were a lien on land was not entitled to subrogation to the lien of the assessments. In McInerny v. Reed, 23 Iowa, 410, it was held that a city could not assign a special tax for street improvements, so as to entitle the assignee by suit in his own name to col lect the same from the taxpayer, and that one who had purchased the property from the city at a void sale for the tax could not, Rep. 204, 38 S. E. 374; Bohn Sash & Door | Rep. 2369, 67 S. W. 372, 68 S. W. 461; Petitioner was entitled to a lien superior to the liens of the mortgagees to the extent of the taxes paid by her. Connor v. Home & Sav. Fund Co. Bldg. Asso. 26 Ky. L. Rep. 109, 80 S. W. 797; Allen v. Perrine, 103 Ky. 516, 41 L.R.A. 351, 45 S. W. 500; Coleman v. Frazer, 3 Bush, 300; Gunn v. Orndorff, 23 Ky. L. therefore, enforce collection from the tax-| payer by a suit in his own name, as the equitable assignee of the city. Regarding the right of the city to make an assignment of taxes, it was said: "It would not do to hold that a city could delegate or farm out either its taxing power or its power to enforce the collection of taxes. It would be a startling proposition to affirm that a city could, for example, sell and assign its tax list to an individual, and authorize him to exercise the high and delicate powers conferred upon the corporation. Why not? The legal answer is that these powers are conferred upon the municipality to be exercised by it, not to be delegated by it to others." It was said also that if the tax were an ordinary debt, and if the ordinary principles of law applicable to dealings between private individuals were applied, it could not be denied that the plaintiff in this instance would become the equitable assignee of the city and subrogated to all its rights; but that the tax was not an ordinary debt arising out of contract, express or implied, though partaking somewhat of the nature of a debt; that without a statute a city could not levy nor collect the tax, and the taxpayer was bound to pay, if at all, only by virtue of the power given to the city to levy and collect; also that to allow the city before judgment to barter and sell as sessments by express contract, assign its right to collect, and by virtue of such sale and assignment invest the assignee with the power to sue and collect in his own name, would be to open a most dangerous door, leading on the one hand to fraud against the city, and on the other to oppression of the citizen or property owner. So, in Brown v. Sheldon State Bank, 139 Iowa, 83, 117 N. W. 289, the court laid down the rule that the right of a county to a lien for taxes was not one capable of assignment, saying that the right of the county is measured not by contract, but by statute, and is the right only to assess and collect, which cannot be farmed out to private individuals; also that it should not require argument to make it clear that, where there is no right or power of assignment. there can arise no right of subroga tion. In denying the right of subrogation, even Rep. 788, 18 S. W. 225; Jones v. Louisville Tobacco Warehouse Co. 135 Ky. 824, 121 S. W. 633, 123 S. W. 307; Bartley v. Knott, 140 Ky. 288, 130 S. W. 1096; Sgobel v. Cappadonia, 8 App. Div. 303, 40 N. Y. Supp. 946. Mr. S. D. Rouse, for appellee Insurance Company: Taxes are not a debt; and one paying taxes assessed against the property of another has no right of subrogation, except as provided by statute. where the tax was paid by a mortgagee, the court in Sperry v. Butler, 75 Conn. 369, 53 Atl. 899, said: "Subrogation is an equitable, and not a legal, right. Its foundation, it is said, is in equity and benevolence. It is a doctrine, therefore, which will be applied or not according to the dictates of equity and good conscience, and considerations of public policy. When the case is one of the subrogation of the individual to public rights and remedies, the situation assumes an aspect not presented where the substitution relates to private rights. Questions of public policy, questions as to the propriety of turning over the governmental machinery to individuals and conferring upon them the powers of the organized public, at once arise. The inquiry becomes one not of legislative power to provide for a complete or partial substitution, but one of judicial discretion in the administration of equitable principles under equitable considerations. So it is that courts ought to hesitate, and have hesitated, to apply the doctrine of subrogation to cases where the substitution would result in conferring upon individuals rights and powers peculiarly designed for and adapted to public purposes, and as a part of the governmental machinery, without statutory sanction, express or implied. The power of taxation is one of the drastic powers exercised by governmental bodies. chinery is skilfully designed to accomplish the desired results most certainly and effectually. It is adapted to its uses, but not to private, unrestrained exercise. Therefore it is that, in the absence of legislation expressly or by reasonable implication authorizing the substitution of the individual for the community, the powers specially created as incidental to the exercise of the public right of taxation ought not to become delegated to private persons by judicial intervention, unless, indeed, it be in rare and extreme cases.' Its ma In Griffing v. Pintard, 25 Miss. 173, it was held that a tax collector who advanced money for taxes on property of another was not subrogated to the rights and remedies of the state against the delinquent taxpayer. So, in Hinchman v. Morris, 29 W. Va. 673, 2 S. E. 863, it was held that in the settlement of a decedent's estate, a sheriff 1 Cooley, Tax. p. 1; 2 Cooley, Tax. p. 812; McInerny v. Reed, 23 Iowa, 410; Hinchman v. Morris, 29 W. Va. 673, 2 S. E. 863; 37 Cyc. 375, 468; Allen v. Perrine, 103 Ky. 516, 41 L.R.A. 351, 45 S. W. 500. Mr. Robert C. Simmons, for appellees Leubrecht et al.: There is no equitable principle presented in this case to support a subrogation. Caine v. Rich, 33 Ky. L. Rep. 261, 110 S. W. 289; Jones v. Louisville Tobacco Warehouse Co. 135 Ky. 831, 121 S. W. 633, 123 S. W. 307; McInerny v. Reed, 23 Iowa, 410; Hinchman v. Morris, 29 W. Va. 673, 2 S. E. 863. who in the lifetime of the decedent had paid taxes on his property, instead of returning it as delinquent, was not entitled to be subrogated as to the taxes paid to the rights of the state; and that, there being no request, express or implied, by the taxpayer for such payment, and no ratification thereof, the sheriff was not only not entitled to payment out of the estate in preference to the general creditors, but had no enforceable claim against the estate. It was said that a tax in its essential characteristics is not a debt, and that, "if taxes, whether state, county, or municipal, are not debts, but are charges imposed upon the taxpayers in invitum by the exercise of the sovereign power of the state, then, as nothing but debts or contracts can be assigned either at law or in equity, and subrogation, because one has paid a debt to the original creditor, is in effect an equitable assignment of the debt by the creditor, it must follow that taxes of no description can be assigned at law or in equity; and so, of course, one who pays the taxes of another, whether or not he be the sheriff or collector, has no right to be subrogated to the rights and remedies of the state, county, or municipality, as the case may be. The power to collect the tax is conferred by the sovereign state county or a municipality, or, in case of the state tax, the power is exercised by the state itself both of levying and collecting. This sovereign power to collect taxes in the mode prescribed by the state cannot, if correct principles are followed, be exercised by any individual for his own benefit, any more than the other sovereign power of levying taxes can be exercised by him. To sell a citizen's land for the nonpayment of taxes on it in the way authorized by the law is the exercise of a sovereign power of the state, which can be justified only by the absolute necessity that the state should receive promptly the taxes to which it is entitled, in order to carry on the government and prevent its coming to an end. For this reason the legislature thought proper by the provisions of the Code of 1860 to permit the enforcement of the lien on land for taxes assessed on it, by a sale of the land or of a portion of it at public auction for cash, without any suit or other legal proceedings. It would indeed be a on a Clay, C., filed the following opinion: Sidney Arthur and others are the owners of two apartment buildings in the city of Covington, and the lots on which they are located. On April 29, 1905, they mortgaged one of the buildings to the Western & Southern Life Insurance Company to secure a loan of $27,000, for which they executed their promissory note payable eleven years from date. Thereafter. they mortgaged the same building to Thomas H. Phillips and George Leubrecht to secure certain promissory notes aggregating $6,900. On August 8, 1906, the same parties mortgaged the other building to the Western & Southern startling proposition to affirm that under our law a sheriff, or anyone else for his own benefit, could thus enforce a lien on land. Yet if the sheriff without any statute can be subrogated to the rights and remedies of the state for the collection of taxes, he can, of course, enforce the lien in this arbitrary manner. For if one is entitled to be subrogated to the rights of another, such subrogation acts as an equitable assignment of the debt, and carries with it not only all the creditor's rights, but also all his remedies." It was said, also, that if the sheriff was subrogated to the rights and remedies of the state, he would be entitled to enforce any of these rights, and to resort to any of the remedies after any length of time; for subrogation, being an implied assignment, transfers not only the right, but also all the remedies, which, but for the assignment, the assignor would have had; and, as there is no statute of limitation which bars any of the remedies of the state, except as to the time within which taxes may be distrained for, the sheriff, when subrogated to the rights of the state, would be subjected to no such bar. The court in Hinchman v. Morris, supra, referred with approval to the case of McInerny v. Reed, 23 Iowa, 410, saying that, while the latter was a case of municipal taxation, in its general reasoning it equally applicable to state and county taxes; that there may be some special reasons why the power to collect municipal taxes should not be communicable to indi was viduals; but that on the other hand there are special reasons why the power to collect state taxes should not be communicable to anybody, and that the reasons which forbid such a transfer are at least as strong as those which forbid the transfer of municipal taxes. Hinchman v. Morris, supra, was decided under the statute law of West Virginia as it was prior to 1881. In that year, as appears from the case, a statute was enacted providing that if a sheriff pays any taxes into the treasury before he has collected the same, he shall have the same remedy for the collection thereof by distress, or otherwise, as if the same had not been paid to the state, except that he shall not have a lien Life Insurance Company to secure a loan same in the name of the commonwealth. Thereafter suit was instituted by the county attorney to enforce the lien of the commonwealth. The city taxes on the first parcel of land for the years mentioned were $1,843.27. The state and county taxes, with interest and penalty, were $418.44. The city taxes on the second parcel of land amounted to $1,827.44, while the state and county taxes, including interest, costs, and penalty, amour.ted to $418.44. The city of Covington, through its delinquent tax collector, was about to institute action in the Kenton circuit court to enforce its lien on said parcels of land for the taxes due for extend the time of their payment. Public policy and the law require that an officer intrusted with the collection of taxes necessary to the support and proper administration of the government should discharge his duties with promptness and fidelity, and if he has been remiss or delinquent in the performance of his trust, it may well be doubted if he is entitled to subrogation under any circumstances. But, however this may be, it is clear that he is not entitled to it to the prejudice of the rights of others." In Mercantile Trust Co. v. Hart, 35 L.R.A. 352, 22 C. C. A. 473, 40 U. S. App. 559, 76 Fed. 673, it was held that a county treasurer who received checks for taxes required to be paid in cash, and thereupon paid over the amount to the state, city, or board of education, made such payment voluntarily, and was not entitled to be subrogated to their rights in the taxes paid; and the court as signed, as an additional reason for refusing subrogation, that it was claimed in this instance as against bondholders under a mortgage from the taxpayer, authorizing foreclosure in case of default in payment of taxes, the taxes having, because of the treasurer's action for several years, appeared upon the record as paid, and the bondhold-property subject to a mortgage claimed the ers having no knowledge or notice that they had not been paid by the mortgagor. And where a sheriff accounted for, but failed to collect, taxes, when the owner had personal property on the premises from which collection could have been made, it was held in Allen v. Perrine, 103 Ky. 516, 41 L.R.A. 351, 45 S. W. 500, that the sheriff's right of subrogation, if any, to the lien of the state for the taxes, was subject to the prior equity of a mortgage, the lien of which had attached before the lien for taxes. Also, in Wallace's Estate, 59 Pa. 401, it was held that in the settlement of a decedent's estate, a tax collector who, during a period of six years, in the decedent's lifetime, while there was sufficient personal property to satisfy the claim for taxes, had paid taxes on his property and obtained a judgment therefor against him, was not entitled to be subrogated to the priority of the state's lien for taxes, so as to obtain a preference over a prior judgment creditor of the decedent. It was said that when the collector paid the taxes to the proper officers entitled to receive them, the lien for taxes was discharged; that, although discharged at law, the lien, if justice required it, might be kept alive in equity for the benefit of a paying surety; but that the tax collector could not be regarded as a surety. "It was his duty to collect the taxes and pay them over without delay, and he had no authority to grant indulgence, or to The court also in Chaffe v. Ludeling, 34 La. Ann. 962, intimated that one paying taxes on the property of another was not entitled to be subrogated to the rights of the state to a preference over the claims of a mortgagee. In this case, where a vendee of right of subrogation to the lien of the state for taxes in preference to the mortgage, the court said that if he paid the taxes before he acquired the property, under no circumstances could he have a claim to subrogation. In Furche v. Mayer, Tex. Civ. App. 29 S. W. 1099, it was held that the plaintiff, who, at the request of the defendants, in order to prevent a sale of the latter's property for taxes, paid them and received a note for the amount advanced, was not entitled to subrogation to the lien for the taxes in favor of the state and city. The court said: "In the case of ordinary liens, one who discharges the lien at the request of the lien holder, or does so by agreement between the debtor and lien holder, or to protect himself from the lien, becomes subrogated to the rights of the original lien holder. We find no well-considered case holding a person entitled to subrogation where he pays off the lien debt simply upon the request of the debtor, unaccom panied by an agreement of subrogation to the discharged lien, or circumstances from which such an agreement may be implied. No agreement of subrogation, or facts from which it may be reasonably implied, were alleged in this case, and we do not think the facts alleged entitled the appellant to that relief. Aside from this view of the case, we do not think the statutory lien existing in favor of the government for taxes due is that character |