City of Louisville v. Cochran

• Decision Date: 13 March 1884
• Citation: 5 Ky.L.Rptr. 833,82 Ky. 15
• Parties: City of Louisville v. Cochran.
• Court: Kentucky Court of Appeals

82 Ky. 15

5 Ky.L.Rptr. 833

City of Louisville v. Cochran.

Court of Appeals of Kentucky.

March 13, 1884

The Legislature has no power to interfere with the title of the citizen to his property either by express enactment or by the destruction of the remedies for its defense and protection.

The act of the General Assembly, entitled an " Act to Amend the Charter of the City of Louisville," approved March 29, 1882, prescribes the form of a petition to recover back taxes alleged to be due this city; that only certain defenses shall be allowed by the court; that all the affirmative allegations of the answer shall be held as controverted, " and the tax-bills shall be evidence of every fact necessary to entitle the city to recover."

Such an act, so far as it presents the form of the petition restricts the defense and changes the rules of evidence, is unconstitutional and void.

APPEAL FROM LOUISVILLE CHANCERY COURT.

H. M LANE FOR APPELLANT.

The power provided for in the act of March 29, 1882, is a sovereign power, unfettered and unlimited, save and except that it must be exercised for a public purpose and upon rules of uniformity. Outside of these limitations the Legislature is unrestricted in the levy of a tax and in the provisions for its collection.

The subjoined authorities are sufficient to establish the principle that an act which provides the machinery for a just and fair assessment, for the levy of a tax, and provides that, if the property assessed is liable to taxation, the tax so assessed and levied shall be paid, or if not paid, enough of the property assessed to pay the tax shall be sold, is constitutional.

(Commonwealth v. Rhodes, 5 T. B. Mon., 642; Cooley on Constitutional Limitations, 163; Section 784, Iowa Revision, 1860; Allen v. Armstrong 16 Iowa 508; Thompson v. Carr, 13 Bush, 218; Marshall v. Donovan, 10 Bush, 691; People v. Todd, 23 California, 184; Saving Bank v. United States, 19 Wal., 240; 12 Bush, 716; 2 Dutcher 399; 4 T. B. Mon., 487; L. & N. R. R. Co. v Commonwealth, 1 Bush, 261; N. C. R. C. Co. v. Alamance, 82 N. C., 259; Session Acts, 1875-76, vol. 1, page 494; Thompson v. Breckinridge, 14 S. & R., 348; Stewart v. Shonfelt, 13 S., & R., 360; Hubley v. Keyser, 2 Penn. R., 496; Strand v. Shoemaker, 1 W. & S., 166; Fayer v. Campbell, 5 Watts, 288; Frick v. Sterrett, 4 W. & S., 269; ; Opinion Justice Melin, in the case of Lord v. M. & M. R. R. Co., 17 Wisconsin, 570; Falls v. Mayor of Maysville, 19 California, 391; People v. Rains, 23 California, 131; Smith v. Cleveland, 17 Wisconsin, 556; Wakeldy v. Nicholas, 16 Wisconsin, 588; Commissioners v. Morrison, 22 Minn. 178; State v. C. P. R. R. Co., 10 Nevada, 61; Gynne v. Neiswanger, 18 Ohio 400; Thatcher v. People, 79 Illinois, 597; Cooley on Taxation; Commonwealth v. Rhodes, 5 Mon., 642; Cooley on Constitutional Limitations, 16 Iowa 508; 13 Bush, 218; 10 Ill. 691; 23 Cal. 184; 19 Wall., 240; 12 Bush, 716; 4 Mon., 487; 1 Bush, 261; 82 N. C., 259; Session Acts., 1875-6, vol. 1, 494; 14 S. & R., 348; 13 Ill. 360; 2 Penn. R., 496; 1 W. & S., 166; 5 Watts, 288; 17 Wis. 570; 19 Cal. 391; 23 Ill. 131; 17 Wis. 556; 16 Ill. 588; 22 Min., 178; 10 Nev. 61; 18 Ohio 400; 79 Ills., 597.)

No brief for appellee.

OPINION

HARGIS CHIEF JUSTICE.

This was an action in the Louisville Chancery Court, to recover back taxes for the years 1876 and 1877, on the following petition:

" The plaintiff, the city of Louisville, says that the defendants hereto are the owners of a certain lot of land in the city of Louisville (description is here given), the taxes assessed and levied on, which lot of land by this plaintiff in and for the years 1876 and 1877 have not, nor have any of them, been paid to this plaintiff, and the bills for which are filed herewith and made a part hereof. Wherefore, the plaintiff prays judgment for the amount of said taxes, and its costs and the enforcement of the lien given by the statute, the sale of the said lot of land and for general relief."

The appellees severally demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained their demurrers, dismissed the petition, and the city took this appeal.

The petition is in exact conformity with the form of petition prescribed by section 6 of an act of the Legislature to amend the charter of the city of Louisville, approved March 29, 1882. The parts of that section essential to the decision of the grave questions raised by the assignments of error and argument, in this case, are as follows:

" The tax-bills, directed by the 5th section hereof to be made out by the Assessor of said city, shall be by him listed for collection by the Back-tax Collector of said city, who, if such bills be not promptly paid, shall cause actions to be instituted thereon in the Louisville Chancery Court to coerce the payment thereof, and cause such actions to be prosecuted to a final judgment, according to the rules and practice of said court, except that the petition in all such cases shall be as follows."

Here follows the form of petition adopted in this suit.

The section then provides: " No defense shall be allowed to any action instituted under the authority of this section, except that the lands, improvements, or personal property assessed for such taxes were not liable to be assessed on or as of the dates at which so assessed or re-assessed, or that the taxes sued for have been paid in whole or in part, * * * and in all and every action instituted by the city of Louisville to recover payment of taxes, the affirmative allegations of the answer shall be treated and held as controverted. "

By section 8, at its close, it is provided that " the tax-bills shall be evidence of every fact necessary to entitle the said city to recover * * * * * in any action for the recovery of taxes."

The tax-bills, directed by the 5th section to be made out by the Assessor, are to embrace taxes defectively levied and assessed for the years 1876, 1877, 1878, 1879, 1880, and 1881, and to be issued upon an assessment of omitted property and a re-assessment of property defectively assessed for each or either of the years named.

The supposed facts contained in the recital of the 5th section are said to have been the moving cause of this extraordinary enactment, and their recital, although not conclusive or presumptive evidence of their truth as to strangers to the act, furnish, in some degree, evidence of the good intent of the Legislature in passing it. That recital is as follows:

" Whereas, defects existed in the assessment and levy of taxes by said city in each of the years 1876, 1877, 1878, 1879, 1880, and 1881; and whereas a large proportion of the persons owning lands or improvements on which taxes were levied in each of said years have paid such taxes in full; and whereas, others owning lands or improvements in said city, and on which taxes were levied by said city in each of said years, have failed to pay such taxes, or have paid them for only some of said years; and whereas, there were lands or improvements in said city liable to be, but which were omitted to be in said years, or in some of them, assessed for taxation by said city; and whereas, it was at all times doubtful whether the payment of such unpaid taxes could have been legally coerced, or such omitted property legally assessed: now that the principle of an equal and just taxation may be preserved, it is made the duty of the Assessor" to assess and re-assess the property and improvements omitted, or on which taxes have not been paid, for any or all of the years named.

These extracts from the act show that the property and improvements sought by it to be subjected to taxes were, from some illegality in the levy or assessment for those years, either beyond the lawful power of ministerial officers or protected by the law of the land, as administered by courts of justice from coercive sale, either under judicial decree or by ministerial officials. What that illegality is, or was, can not be obtained by an inspection of the act, but whatever it may be, there are rules, based upon constitutional protection to property, which define the curative power of the Legislature and fix limits to retrospective laws. The line limiting legislative power on this subject falls between what are termed mere irregularities in legal proceedings, arising from defects in them, which may be cured by legislative enactment, unless expressly forbidden, and those defects which relate to the substance of right or jurisdiction, and which can not be cured without cutting off defenses, based upon irrevocable facts, out of which the right grows, or divesting vested rights in property, or destroying the remedy for its protection, which gives value to it, or enacting unequal and partial legislation, or adopting some of the other innumerable modes of invading the rights of life, liberty, and property, which the Legislature might resort to, or mistakenly assume, were it permitted to pass the bounds of its constitutional power to legislate and usurp judicial functions committed to another and a co-ordinate department of the government. (Sec. 2, Art. 1, Cons. Ky.)

The general rule, says Cooley on Constitutional Limitations, 371, speaking of statutes to cure irregularities in the assessment of property for taxation, and the levy of taxes thereon, is:

" If the thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the Legislature might have dispensed with by prior statute, then it is not beyond the power of the Legislature to dispense with it by subsequent statute. And if the irregularity consists in doing some act, or in the mode or manner of doing some act

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