City of Covington v. Hoadley

• Decision Date: 17 December 1885
• Citation: 7 Ky.L.Rptr. 487,83 Ky. 444
• Parties: City of Covington v. Hoadley, & c.
• Court: Kentucky Court of Appeals

83 Ky. 444

7 Ky.L.Rptr. 487

City of Covington v. Hoadley, & c.

Court of Appeals of Kentucky.

December 17, 1885

APPEAL FROM KENTON CIRCUIT COURT.

T. F HALLAM FOR APPELLANT.

Brief not in record.

WM GOEBEL FOR APPELLEES.

1. The language of the limitation plea is general. It is, therefore only a plea of the general limitation law of five years. ( Bell v. Norris, 79 Ky. 48; Howell v Rogers, 47 Cal. 291.)

2. The special limitation law is invalid because it violates the constitutional rule of equality, and invades private rights. (Const. of Kentucky, article 13, section 1; Commonwealth v. Whipps, 80 Ky. 277; Smith v. Warden, 80 Ky. 610; Kentucky Trust Co. v. Lewis, 6 Ky. Law Rep., 547; Gordon v. Winchester Building Association, 12 Bush, 110; Cooley's Const. Limit., 5th ed., pages 344-5 and 484-5. Cited in petition for rehearing: Town of Virden v. Needles, 98 Ill. 367; Hubbard v. Brainerd, 35 Conn. 563; Cooley's Principles of Const. Law, page 327.)

3. Special privileges cannot be conferred upon municipal corporations in their private character. (Dillon on Municipal Corporations, 3d ed., sections 66, 67, 460; Louisville v. Commonwealth, 1 Duvall, 297; Memphis v. Fisher, 9 Baxter, 239; Durkee v. Janesville, 28 Wis. 464.)

4. The cases of O'Bannon v. L., C. & L. R. R. Co., 8 Bush, 348, and City of Covington v. Voskotter, 80 Ky. 219, distinguished from this case.

OPINION

HOLT JUDGE:

This action is to recover back municipal taxes paid under a mistake of law and fact, and in ignorance of their rights by the appellees, Hoadley and Bates, to the appellant, the city of Covington, upon agricultural lands, not used for city purposes, or receiving any of the benefits of city government. The appellant, upon the trial below, withdrew all matter of defense, save that contained in the second paragraph of its answer, which reads thus:

For a second defense this defendant says that it did not, within six months next before the bringing of this action, receive from the plaintiffs, or either of them, the payments by them in their petition alleged to have been made, or any or either of the said payments or any part thereof, and it pleads and relies upon the statute of limitation in such cases made and provided."

By section 4 of an act to amend the city charter of Covington, approved February 17, 1874, it is provided:

" That all actions to recover from said city the amount of any taxes or assessments which have been or may be illegally or erroneously collected, shall be prosecuted within six months after the cause of action arose, and not afterwards; but this act shall not apply to causes of action now existing until the first day of February, 1875."

It is admitted that none of the money sued for was paid within the six months next prior to the bringing of the action; and it is urged, first, that the limitation provided by said act is not sufficiently pleaded; and second, that if so, it is a grant of special privilege to the city, not in consideration of any public service, and in violation of the general law, and one not accorded to other corporations and persons, and is, therefore, void.

Section 119 of our Civil Code requires a private statute to be specially pleaded by giving its title and the date when it became a law; but the act supra is a public one of local application. The action is for taxes improperly collected. The answer expressly says, that they were not received within six months next prior to the bringing of the suit, and relies " upon the statute of limitation in such cases made and provided." By the general law of this State the limitation of an action for mistake, or upon an implied contract, is five years; but the wording of the pleading in this instance unmistakably shows that it did not relate to it, and it is clear that the appellees understood from it that the appellant was relying upon the six months' act, because they endeavored to avoid it by filing a reply, in which they allege that they did not know or discover their rights until within six months next before the bringing of the action.

In the case of the city of Covington v. Voskotter, 80 Ky. 219, the pleading, relying upon this same statute, was, in substance, similar to the one now under consideration--in fact, in nearly the same language--and it was sustained.

The remaining question is not free from difficulty. It has been said that " no man who is not a lawyer would ever know how to act, and no man who is a lawyer would, in many instances, know how to advise, unless courts were bound by authorities firmly as pagan deities were supposed to be bound by the decrees of fate." While we do not admit the parity of the illustration, because precedent, which is exclusive of right, should not be followed, yet, in this instance, after diligent search, the way seems to have been but slightly blazed.

The cases of O'Bannon v. L., C. & L. R. R. Co., 8 Bush, 348, and Mortimer v. L. & N. R. R. Co., 10 Bush, 485, were brought under statutes extending the common law liability, or creating a new right, and it and the method and time for its assertion were declared by the same statute. In the City of Covington v. Voskotter, supra, it was urged that the act now in question was unconstitutional, but upon the ground that it was in violation of the constitutional provision, which requires that an act of the Legislature shall relate to but one subject, which shall be expressed in the title, and not because it was unequal and partial legislation.

It is proper, however, to suppose that the court then viewed the act from all points, and although the opinion does not...