City of Lexington v. Wilson

• Decision Date: 11 May 1904
• Citation: 118 Ky. 221,80 S.W. 811
• Parties: CITY OF LEXINGTON v. WILSON et al.
• Court: Kentucky Court of Appeals

80 S.W. 811

118 Ky. 221

CITY OF LEXINGTON v. WILSON et al.

Court of Appeals of Kentucky.

May 11, 1904

Appeal from Circuit Court, Fayette County.

"To be officially reported."

Action by the city of Lexington against B. B. Wilson and others. From a judgment for defendants, plaintiff appeals. Reversed.

Allen &amp Duncan, Z. Gibbons, and A. O. Ambrose, for appellant.

J. D. &amp G. R. Hunt, for appellees.

PAYNTER J.

The appellees are the proprietors of a feed, livery, and sale stable. By proper ordinances enacted pursuant to the charter of cities of the second class a license or occupation tax was imposed upon the proprietors of livery stables, which is graduated by the number and character of vehicles used for hire in the conduct of business. The ordinances were adopted for the purpose of raising a revenue, but no provision was made for collecting it by a summary way or by suit. This action was instituted to recover amounts due from appellees as in case of debt. On demurrer the court dismissed the petition; hence the question here for determination is, can such an action be maintained?

Before entering into a discussion of the question, it is well to say that the court is confronted with the claim that its opinions on the question are in conflict, not only as to conclusions but as to reasons given in support of them. A careful examination of the opinions leads the court to concede that the claim in some degree is true. It is of the greatest importance that the opinions of this court should be in harmony one with another, not only that persons who have controversies may know their legal rights, so that they can be settled without resort to courts, but that the administration of justice may be had in so far as it is possible under settled rules of law. It is especially important that this should be so in the matter of the imposition of public burdens and the method of their enforcement. In view of the conflict in the opinions of the court on the question under consideration, a brief review of them is necessary, so that the court may the more clearly state its conclusions and the rule that is to be observed hereafter.

By an act of the Legislature, the Portland Dry Dock & Insurance Company was required to pay to the city of Louisville 50 cents on each $100 of its capital stock, and, as the capital stock was $100,000, the tax amounted to $500 annually. By a subsequent act the board of trustees of the town of Portland were empowered to collect and receive $200 of the annual tax to be laid upon the Portland Dry Dock & Insurance Company and the city of Louisville $300 of it. The trustees of Portland brought suit against the Portland Dry Dock & Insurance Company for their part of the tax, and the question was made that the action could not be maintained. This court, in Portland Dry Dock & Insurance Company v. Trustees of Portland, 12 B. Mon. 81, held the action could be maintained, although a more summary remedy was provided by law for the collection of the tax.

In Johnson v. Louisville, 11 Bush, 527, 538, the court had under consideration the question as to whether a suit for a tax could be maintained when the charter of the city of Louisville had provided a full and adequate remedy for the collection of the tax, and, while the court held that the judgment was not void which had been rendered for the tax, it also held that, as there was a full and adequate remedy provided by law for its collection, it was exclusive. In conclusion the court said: "We are well satisfied that upon principle such suits cannot be maintained, and that sound public policy demands that the courts should not sustain them, except in those cases where the prescribed mode of enforcing payment would be ineffectual."

It was claimed that the property of the Louisville Water Company should pay taxes. The company denied its liability therefor. The sheriff was proceeding to enforce payment, and the water company enjoined the collection of the taxes. In passing upon the question in Louisville Water Company v Hamilton, 81 Ky. 523, the court decided that the water company was liable for the taxes, but that, as it was performing a public service, its property could not be seized and sold by the sheriff for the taxes. It was also held that, as the court had been applied to for "some sort" of relief by the water company, it should have taken cognizance of the case, and required it to pay the money into court, etc.

In Greer v. City of Covington, 83 Ky. 410, 2 S.W. 323, the court sustained the right to maintain an action to recover taxes, because the statute provided for such an action in addition to the right of the tax collector to seize and sell property for them. It also decided that such an act was not in violation of the Constitution.

In Baldwin v. Hewitt, Auditor, 88 Ky. 680, 11 S.W. 803, the court held that a suit for taxes could not be maintained without express legislative authority, upon the theory that the collection of taxes was not an inherent power of the judiciary; that to allow such an action would destroy the theory of government as to the distribution of powers; and, further, because the Legislature had given the right to sue railroad companies for taxes, there was implied "a legislative opinion that in its absence no such suit could be maintained."

In the case of Louisville Water Company v. Commonwealth, 89 Ky. 248, 12 S.W. 300, 6 L. R. A. 69, the commonwealth sought to recover taxes, and the court held that the action could not be maintained because there was no express statute authorizing it.

In Clark, Sheriff, v. Louisville Water Company, 90 Ky. 524, 14 S.W. 502, it appeared that the sheriff had seized, and was going to sell, the property of the water company for taxes, and it enjoined the sheriff from doing so. The court held it was liable therefor, and adjudged that, as it had come into court asking equitable relief, the court should take charge of its property and compel it to pay the tax.

In City of Covington v. District of Highlands of Campbell County, 68 S.W. 669, 24 Ky. Law Rep. 433, the appellee instituted an action against the city of Covington to recover the tax due it, and the court sustained the action, although there was no express authority for it.

A careful examination of the cases to which reference has been made shows that the court in the cases of the Portland Dry Dock Insurance Company v. Trustees of Portland, and City of Covington v. District of Highlands of Campbell County, held that actions to recover taxes, although there was no express legislation authorizing it, could be maintained. The case of Johnson v. Louisville recognized that such an action could be maintained if the remedy provided by law for their collection was not full and adequate. In Louisville Water Company v Hamilton the court certainly recognized that an action could be maintained to recover without any express statute authorizing it, or it would not have held that, as the water company had sought relief in the court against their collection, the court should have enforced their payment. The fact that the water company sought relief against the collection of taxes did not confer upon the court the jurisdiction to enforce...