City of Covington v. State Tax Commission

• Citation: 231 Ky. 606,21 S.W.2d 1010
• Parties: CITY OF COVINGTON v. STATE TAX COMMISSION et al. (two cases).
• Decision Date: 22 November 1929
• Court: Court of Appeals of Kentucky

21 S.W.2d 1010

231 Ky. 606

CITY OF COVINGTON v. STATE TAX COMMISSION et al. (two cases).

Court of Appeals of Kentucky

November 22, 1929

Appeal from Circuit Court, Franklin County.

Separate actions by the City of Covington against the State Tax Commission and others. Judgments of dismissal, and plaintiff appeals. Reversed, with directions.

Harry D. Kremer, of Lexington, for appellant City of Covington.

Rouse &amp Price, of Covington, for appellee Covington & Cincinnati Bridge Co.

J. W Cammack, Atty. Gen., for appellee State Tax Commission.

Galvin & Tracy, of Cincinnati, Ohio, for appellees C. & O. R. R. Co. and Covington & Cincinnati Elev. R. R. & Transfer & Bridge Co.

Morris & Jones, of Frankfort, for appellee C. & O. Ry. Co.

THOMAS J.

The first case in the caption was designated in the court below and is referred to on this appeal, as case No. 33019, while the second one was designated in the same court and referred to in this one as No. 33020. Each of them was filed in the Franklin circuit court against the state tax commission and its members, and against the owners and operators of two bridges spanning the Ohio river between Covington, Ky. and Cincinnati, Ohio; the one in the first case in the caption (No. 33019) being exclusively a railroad bridge.

The relief sought by plaintiff in each of them was a writ of mandamus ordering, directing, and requiring the state tax commission to certify to the proper authorities of the city of Covington the assessed value of the mileage of each bridge, including its franchise valuation for taxing purposes, which plaintiff alleged in its petitions was that portion of the properties between low- water mark on the south, or Kentucky, side of the Ohio river, and low-water mark on the opposite Ohio shore of the river, upon the theory that the northern corporate boundary of the city of Covington extended to the northern line of the state, which is low-water mark on the northern shore of that river. But, if mistaken in that contention, then plaintiff alleged in its petitions that the corporate limits of the city of Covington in any event extended to the thread of the stream of the Ohio river, and that it was entitled to collect taxes on the aforesaid valuations of the involved bridges, or so much of each as was located between low-water mark on the south side of the river and the thread of the stream.

Defendants in each case denied plaintiff's right to the relief it sought upon the ground that the northern boundary of the city of Covington was located at low-water mark on the south shore of the Ohio river, and that each of the bridges had paid to plaintiff, the taxes due it pursuant to certifications made by the state tax commission, on the assessed valuation of the bridge properties up to low-water mark on the south shore of the Ohio river. There was also a plea of res adjudicata made by the Chesapeake & Ohio Railway Company in case 33019, which consisted of a judgment rendered by the Kenton circuit court on May 22, 1928, in an action theretofore filed in that court on May 16, 1914, by one John Kleyman as delinquent tax collector of the city, and which he styled ""City of Covington v. Covington Elevated Railroad and Transfer Bridge Company," by which he sought a judgment, assessing the physical and franchise valuations of the bridge company for municipal taxes, and for a judgment for the amount of taxes due upon such assessment when made. That petition was amended from time to time so as to include all the years not barred by the statute of limitations up to and including the year 1925. The same defense, that the property sought to be assessed therein was not located in the corporate boundary of the city of Covington, was therein made, but not until a special and general demurrer to the petition was filed by defendant and overruled by the court.

On the day the judgment was rendered therein (February 14, 1927), the court set aside its orders theretofore made in that case, overruling the special and general demurrers, and sustained each of them, and dismissed the petition, and which latter order was done upon the ground that the circuit court was without jurisdiction to grant the relief prayed for, because the exclusive authority to assess such property for state, county, and municipal taxation rested in the state board of tax commissioners since its creation, and by its predecessor state agency for that purpose prior to its creation. More than a year later, and on May 22, 1928, after that petition had been so dismissed, the parties thereto appeared in the same court, and by consent filed a paper denominated "A substituted petition" in lieu of the original petition filed in 1914 and the various amendments thereto, and in which all such original pleadings were withdrawn from the case. Such substituted petition purported to be an action under what is known as our "Declaratory Judgments Statute" (Civ. Code Prac. §§ 639a1 to 639a12), but it was filed by the same delinquent tax collector for the city of Covington. In it the sole question submitted for determination was the true location of the north boundary of the city of Covington.

On the same day the substituted petition was filed in that case, an answer was filed by the defendants therein, in which the same question was submitted for the court's determination, and on the same day, without the taking of any proof except what had been taken in the original cause before such substitution was made, the matters presented by the substituted petition were submitted to the court and it rendered this judgment: "This cause being submitted for judgment, it is adjudged, that the plaintiff's petition as amended be and it is now dismissed, to all of which the plaintiff excepts and prays an appeal to the Court of Appeals which is granted." The efficacy of that judgment in support of the res adjudicata defense interposed in case No. 33019 will hereafter be considered. Learned counsel for defendants in the other case also relied on a res adjudicata plea, which was bottomed on his interpretation of this court's opinion in the case of Kennedy's Heirs v. Covington, 8 Dana, 50, his client succeeding to the rights of Kennedy's heirs, and which case will be referred to hereinafter and discussed and construed as not supporting the plea. Following pleadings in the instant cases made the issues, and, upon final submission, the court adjudged that the northern corporate limits of the city of Covington extended only to low-water mark on the Kentucky shore of the Ohio river, and therefore dismissed the petition in each of them, and from those judgments plaintiff in each of them prosecutes these appeals.

It will at once be seen that the decisive question in each of these appeals (putting aside for the moment the res adjudicata defenses) is: Where is the true location of the northern boundary of the city of Covington, and which we regard as being one of mixed law and fact, and involves the construction of certain deeds and enactments of the General Assembly of Kentucky directly bearing thereon. The town of Covington (subsequently changed to "The City of Covington") was first incorporated by an act of the General Assembly of Kentucky approved February 8, 1815, and by that act it was established: "On the land lately purchased of Thomas Kennedy, by Richard M. Gano, Thomas D. Carneal and John S. Gano, situated at the mouth of the Licking river, on the lower side thereof," and which territory at that time was a part of Campbell county, Ky. Kenton county being later carved therefrom. The "land lately purchased of Thomas Kennedy" upon which the General Assembly established the town of Covington consisted of 150 acres, and was purchased by Kennedy from James Welch on December 9, 1801, the description of which, as contained in the deed, so far as pertinent to the question now involved, says: ""Beginning at a Beech and Honey Locust; thence south down the Ohio, eighty-four degrees west, seventy-four poles, south seventy-one degrees west, ninety-four poles, south sixty degrees west sixty poles, south eighty-two degrees west, ninety-two poles, to Beech and Hopwood on the river bank."

Kennedy later sold and conveyed the land to Gano, Carneal, and Gano, and in which conveyance he described the tract as "lying and being in the county of Campbell and state of Kentucky at the junction of the Licking and Ohio rivers on the lower side of the Licking river, consisting of the land conveyed by James Welch to said Thomas Kennedy by deed recorded in Campbell county aforesaid, dated 9th day of December, 1801," except 50 acres theretofore conveyed by Kennedy to one Joel Craig, and which conveyance was made to the grantees as a town site upon which they later located the town of Covington. In 1841 and in 1849 the corporate limits of the then city of Covington, which in the meantime had annexed the town of West Covington, were extended by special acts of the Legislature down the Ohio river (and which it had the authority to so do under the then Constitution of the state).

The first extending act said: "Commencing on the Ohio river at the western corporation line; thence down said river to the west side of Main street," etc.; while the language of the second extending act read: "Beginning on the Ohio river at the western corporation line, the foot of Main street, thence down said river, to a point where a line drawn parallel to and four hundred feet west of the principal part of Wright Street, in Ludlow's subdivision, will intersect." Both of such annexations were located west of the original incorporated town of West Covington, but which in the meantime had become annexed to the city of Covington. The act incorporating West Covington read ""Beginning on the Ohio river at the...