Anderson v. City of Mayfield

• Decision Date: 24 May 1892
• Citation: 93 Ky. 230,19 S.W. 598
• Parties: Anderson v. City of Mayfield et al. Tice v. Same.
• Court: Kentucky Court of Appeals

19 S.W. 598

93 Ky. 230

Anderson v. City of Mayfield et al.

Tice v. Same.

Court of Appeals of Kentucky.

May 24, 1892

Appeals from court of common pleas, Graves county.

"To be officially reported."

Two actions are involved herein. One by L. Anderson, Jr., and the other by W. W. Tice, and both against the city of Mayfield and others. Judgment for defendants in both cases. Plaintiffs appeal. Affirmed.

HOLT C.J.

These cases involve mainly the same questions, and will therefore be considered together. They seek to enjoin the sale of property levied upon for city taxes. The grounds relied upon are quite numerous, and only those will be considered which we deem important. The charter of the city of Mayfield provides that its assessor shall make his assessment and return his lists to the proper officer by a certain time. This was not done. The assessment was made after the prescribed period. This provision is not, however, for the benefit of the taxpayer. It is not important to him. Its object is to secure for the city order and dispatch in the collection of its taxes and the transaction of its business. Such provisions are not regarded as mandatory, in the absence of words importing that the required act shall not be done at any other time than that designated. No such negative words are contained in this charter. A person should not be allowed to rely upon the mere nonfeasance of an officer when it is not important to that person, and thus escape the performance of his own duty. Even the omission of property in making an assessment, either through the negligence or default of the assessing officer or where it occurs through mistake of law, does not vitiate the tax. If so, as all men are fallible, no tax could ever be collected, and the government would fail. Cooley, Tax'n p. 155. The requirement being merely directory, the making of the assessment at a later period did not render it, and proceedings based upon it, void. Even if the taxes were being improperly expended, yet the taxpayer cannot, therefore refuse to pay his tax. He cannot have relief in this way. He must do his duty, and look to the law to compel a proper expenditure. The tax in question was authorized by the city charter; and, in such a case, whether its imposition be necessary is a matter for the determination of the taxing power. It was attempted in one of these cases to prevent the collection of the tax, provided it was legal, by the assertion of an alleged indebtedness of the city to the taxpayer. This cannot be done unless expressly authorized by statute. A tax grows out of a duty, and not out of contract. It is not collectible by suit unless expressly authorized. It is not a demand founded upon a contract or a judgment. Cooley says: "Taxes are not demands against which a set-off is admissible; their assessment does not constitute a technical judgment, nor are they contracts between party and party, either express or implied; but they are the positive acts of the government through its various agents, binding upon the inhabitants, and to the making and enforcing of which their personal consent individually is not required." Cooley, Tax'n, p. 13. If the rule were otherwise, the machinery of government would be liable to interruption. The nature of a municipal tax-the purpose of it-forbids the assertion of a demand as a set-off, unless expressly authorized by statute. This rule is necessary to the continuance of the government. Himmelmann v. Spanagel, 39 Cal. 389.

It is also averred in the one case that the tax is upon an unauthorized raised value of the property. It appears after the lists were returned the city council, as to certain property, entered, opposite the liast, a certain amount s a sum to be added to the value...