City of Covington v. Cincinnati, C. & R. Ry. Co.

• Decision Date: 05 October 1911
• Citation: 144 Ky. 646,139 S.W. 854
• Parties: CITY OF COVINGTON v. CINCINNATI, C. & R. RY. CO.
• Court: Kentucky Court of Appeals

139 S.W. 854

144 Ky. 646

CITY OF COVINGTON v. CINCINNATI, C. & R. RY. CO.

Court of Appeals of Kentucky.

October 5, 1911

Appeal from Circuit Court, Kenton County, Criminal, Common Law, and Equity Division.

Action by the City of Covington, on the relation of its delinquent tax collector, against the Cincinnati, Covington & Rosedale Railway Company. From a judgment of dismissal rendered on sustaining a demurrer to the petition, plaintiff appeals. Reversed and remanded.

A. E Stricklett, John L. Rich, and W. A. Price, for appellant.

Ernst Cassatt & Cottle, for appellee.

CLAY C.

The city of Covington, on relation of its delinquent tax collector, brought this action against the Cincinnati Covington & Rosedale Railway Company for the purpose of recovering certain taxes on its franchise which it is alleged was omitted from assessment for the years 1905 to 1909 inclusive. The petition charges that the defendant company failed and refused to make any report or statement required by law for the purpose of ascertaining and fixing the value of its franchise. It is alleged that the defendant runs and operates a line of street railway and owns and exercises a franchise in the city of Covington. The petition sets out the value of defendant's franchise for each of the years referred to, and the rate of taxation imposed by the city for each of said years, together with the amount of taxes due. In paragraph 2 it is charged that the defendant owns and operates a line of street railway and exercises a franchise in the city of Latonia, and that the territory constituting the city of Latonia was annexed to and became a part of the city of Covington. The value of defendant's franchise in the city of Latonia is set forth for the years 1906 to 1909, inclusive, together with the rate of taxation imposed by that city and the amount of taxes due for each of said years. Defendant's demurrer to the petition was sustained, and the petition dismissed. From that judgment the city of Covington appeals.

This action was brought pursuant to an amendment to section 3187 of the Kentucky Statutes (Russell's St. § 1237), which amendment is embraced in section 4, c. 106, p. 296, of the Acts of 1910. That part of the amendment material to this controversy is as follows: "Where any property, subject to taxation, has been omitted for assessment for any year or years, the city may, by direct action, brought in the name of the city by its city solicitor, city attorney or other duly authorized agent, in any court otherwise competent for the purpose, recover judgment against the person liable for the payment of taxes on such property (except persons under disability of infancy, coverture or unsound mind) for such amount as the taxes to the city on such property, with interest and penalty thereon, would be for such year or years, if the property had been assessed at its assessable value for such year or years, and the costs of the action. The judgment shall, from the time of its rendition constitute a lien on the property and collection thereof may be enforced by sale of the property in the same manner as property is sold in satisfaction of liens created by contract. Such judgment may be collected by any means allowed by law for the collection of...