City of Louisville v. Johnson

• Decision Date: 27 January 1894
• Citation: 24 S.W. 875,95 Ky. 254
• Parties: CITY OF LOUISVILLE v. JOHNSON.
• Court: Kentucky Court of Appeals

24 S.W. 875

95 Ky. 254

CITY OF LOUISVILLE v. JOHNSON.

Court of Appeals of Kentucky.

January 27, 1894

Appeal from chancery court, Louisville county.

"To be officially reported."

Action by the city of Louisville against Robert Johnson for the recovery of taxes. From a judgment for defendant, plaintiff appeals. Affirmed.

Laf. Joseph, for appellant.

Lane &amp Barnett, for appellee.

PRYOR J.

The assessment of the appellee's property was made, as provided by the charter of the city, as of the 1st of September, 1884, for the taxes for the year 1885. The levy ordinance was passed, also as required by the charter, in the month of December, 1884, for the taxes of the succeeding year,-1885. The charter also allows discount on the taxes, if paid in the months of January, February, and March, and all taxes not paid by the 1st of May become a debt. If the taxes due are not paid by the 20th of August of the year they are due, summary process will be issued or taken against the delinquent by distraint or garnishment, to be levied on the goods and chattels of the delinquent taxpayer. Section 7 of the charter, relating to this subject, provides: "That on the 1st of May of the second year after the assessment of city taxes, the receiver shall make out a list of the bills still wholly or partially unpaid, on lands or improvements and furnish the list to the city attorney whose duty it shall be to bring without delay, suits for the recovery thereof in the Louisville chancery court," etc. The act further authorizes a personal judgment. It seems that the city through its receiver, failed to collect the taxes due by the appellee, in the ordinary mode, and, having reported the appellee as delinquent, the attorney for the city filed this petition on the 16th of March, 1891, to subject the real estate of the defendant, and for personal judgment. The statute of five years was interposed as a bar to the recovery. The taxes were due on the 1st of May, 1885, and could have been collected under a warrant by the receiver under which the goods and chattels of the taxpayer, if he had any, were liable to seizure and sale. The section of the act making the tax a debt provides that it may be enforced by all the remedies known to the law, as in cases of contract, in any court of the commonwealth otherwise competent for that purpose "aside *** from the other remedies hereafter given." The proceeding by action in equity is given in addition to the ministerial remedies provided by law, and, where one fails, the other remedy may be looked to.

It is argued by counsel for the appellee that at any time after the tax becomes due the action in equity to enforce the lien may be resorted to. In this we do not concur. It could not have intended by the framers of this statute that the doors of the courts should be thrown open, and courts of equity made tax collectors, in lieu of the regular ministerial or executive officers; and it is only when the remedies given the collector fail that a court of equity can be resorted to, and the statute should be followed in this regard. Nor can the failure of the ministerial officer to enforce the remedies given him affect the right of the city to sue, for, after the expiration of the time given him to coerce payment, a failure on his part to collect will authorize the maintenance of the action in equity.

Counsel for the city has attempted to classify the property of the taxpayer, in order to maintain his position, the result of which is to give the owner of real estate a longer time in which to pay his taxes than the owner of personal estate. The taxes on real and personal estate are due at...