Commonwealth, by, Etc. v. Louisville Nat. Bank

• Decision Date: 20 May 1927
• Citation: 220 Ky. 89
• Parties: Commonwealth, by Board, Revenue Agent v. Louisville National Bank.
• Court: United States State Supreme Court — District of Kentucky

Page 89

220 Ky. 89

Commonwealth, by Board, Revenue Agent v. Louisville National Bank.

Court of Appeals of Kentucky. Chancery Branch, Second Division.

Decided May 20, 1927.

1. Counties. — Revenue agent for state has no authority, under Ky. Stats., section 4263-4, to maintain action for county taxes in name of commonwealth, since "county school or district school taxes" in such statute means school taxes due by taxpayers residing within county or district, to be expended therein, and not "county, school, or district school taxes," in view of sections 4099, 4376b, 4383a-2, 4398a-5, 4399a-3-4399a-5, 4399a-10, 4399a-11, 4420a-1, 4526c-1, 4526c-2.

2. Statutes. — Courts may insert punctuation marks in statute or even substitute or transpose words to arrive at evident intention of Legislature, but such procedure is never resorted to unless statute as framed fails to express manifest purpose of its enactment or would lead to inconvenience, absurity, hardship, or injustice presumably not intended.

3. Taxation. — School taxes can be classified only as state taxes, and not as local taxes levied and collected exclusively for particular territory, district, or subdivision in which they may be expended.

4. Schools and School Districts. — Provision of Ky. Stats., section 4263-4, for collection of school taxes by state revenue agent, is not invasion of Constitution, sections 181, 181a, relative to Legislature's authority to collect taxes for purpose of "any county, city, town or other municipal corporation," since school taxes are state taxes.

Appeal from Jefferson Circuit Court

HARRY D. KRAMER, D.O. MYATT and MORRIS & JONES for appellant.

T.K. HELM, JAMES W. STITES and TRABUE, DOOLAN, HELM & HELM for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming.

This action was filed in the Jefferson circuit court in the name of the Commonwealth by Milton Board, revenue agent for the state at large, against appellee and defendant below, the Louisville National Bank, to collect a balance of taxes alleged to be due from it to the county of Jefferson for the years 1922, 1923, and 1924, amounting in the aggregate to $4,574.87, for which judgment against defendant was asked with interest from the due dates of the alleged unpaid taxes with 20 per cent penalty thereon for the benefit of the revenue agent. It appears in the petition, and is admitted by counsel for plaintiff, that no part of the taxes sought to be recovered belongs to the Commonwealth, nor was it due for school purposes, but due, if at all, to the county of Jefferson for purely county purposes.

Defendant filed a special demurrer to the petition, thereby challenging the right and authority of the revenue agent to maintain the action in the name of the Commonwealth or otherwise, and that demurrer was sustained with exceptions. Plaintiff declined to plead further, and the action was dismissed, and to review that judgment plaintiff prosecutes this appeal.

It is conceded by counsel for plaintiff that the only source from whence the authority of his client to maintain the action, if at all, emanates from and is contained in section 4263-4 of the 1922 edition of Carroll's Kentucky Statutes, which is the section as amended by chapter 55, p. 176, Acts of 1918. That section in so far as relevant says:

"It shall be the duty of the revenue agent, state or county, and he shall have authority when directed by the (state tax commission), to institute suits, motions or proceedings in the name of the commonwealth against any delinquent officer or other person to recover any money which may be due the commonwealth, or license taxes due the commonwealth, or any inheritance tax due this commonwealth, or any county school or district school taxes due any county or school district in this commonwealth; (provided, that the [state tax commission] may appoint or designate a special revenue agent for the purpose of recovering county school or district school taxes due as provided herein), and in all such . . . proceedings in which a judgment is recovered, the party in default shall, in addition to the amount for which he is liable to the state, county or district, be adjudged to pay a penalty of twenty per centum (20%) on the amount due; and the revenue agent who prosecutes such action and recovers the amount due the commonwealth, county or district, shall be entitled to receive for his services seventy-five per cent (75%) of said twenty per centum (20%) penalty and the remaining twenty-five per cent (25%) of said twenty per centum (20%) penalty shall be paid into the back tax reserve fund."

It is conceded by plaintiff's counsel that the statute as printed (which is the same as the enrolled bill) and as punctuated in both the printed and enrolled bill does not confer the authority upon the revenue agent to maintain the action to collect purely county taxes, and therefore the whole case is pitched and rested upon the argument that immediately following the word "county," where we have italicized it in the above excerpt, there should be placed a comma, which, if done, would then authorize the revenue agent by this character of proceeding to recover, not only the various sorts of taxes due the commonwealth as such, but also taxes due the county as such, and likewise school taxes due the county as well as school districts. They seek, at least in part, to sustain that argument by calling attention to that portion of the inserted statute saying, "and in all such suits, motions or proceedings in which a judgment is recovered, the party in default shall, in addition to the amount for which he is liable to the state, county or district, be adjudged to pay a penalty," etc.; the argument being that it is therein provided for a penalty upon the amount due the taxing authorities which it is insisted under the last-quoted language are the state, the county, and the district.

By urging the insertion of the comma, contended for, counsel invoke a rule of interpretation that is as old as the law itself, and has been applied many times by this court, one illustration of which is found in the case of Nichols v. Logan, 184 Ky. 711, 213 S.W. 181. The rule not only authorizes courts to insert punctuation marks in order to arrive at the evident intention and purpose of the Legislature, but it also allows the substitution or the transportation of words, if necessary to arrive at the true intention and purpose of the Legislature in enacting the statute and which was done by us in the Nichols case. The rule when requisite to accomplish the purpose for which it was originally invoked is of universal application and is familiar to all members of the profession. But it...