Commonwealth v. Boske

• Decision Date: 30 January 1907
• Citation: 124 Ky. 468,99 S.W. 316
• Parties: COMMONWEALTH, TO USE OF DEVOE, v. BOSKE ET AL.
• Court: Kentucky Court of Appeals

99 S.W. 316

124 Ky. 468

COMMONWEALTH, TO USE OF DEVOE, v. BOSKE ET AL.

Court of Appeals of Kentucky.

January 30, 1907

Appeal from Circuit Court, Kenton County.

"To be officially reported."

Action by the commonwealth, for the use of Mrs. Devoe, against John F. Boske, as sheriff of Kenton county, and others, to recover taxes paid. From a judgment in favor of defendants plaintiffs appeal. Affirmed.

Furber & Jackson, A. G. Simrall and R. S. Holmes, for the Commonwealth. F. M. Tracy, for appellee Kenton county. R. C Simmons, for appellees Boske and others.

CARROLL C.

In Richardson v. Boske, 64 S.W. 919, 23 Ky. Law Rep. 1209 which was a suit by certain taxpayers of Kenton county residing outside of the corporate limits of the city of Covington to enjoin the sheriff from collecting taxes levied upon their property by the fiscal court of Kenton county this court held that the injunction prayed for should have been granted, resting its opinion upon the ground that the fiscal court was composed of all the magistrates in the county of Kenton, seven in number, and that the taxable property of the entire county, including that situated within the corporate limits of the city of Covington, as well as that without, was liable for its proportionate part of the taxes imposed for county purposes; whereas, the tax sought to be enjoined was levied by the five justices of the peace who resided outside the corporate limits of the city of Covington, the two justices residing in the city not taking any part in making the levy, which was only imposed upon the property outside the city of Covington, thereby exempting from the tax levied two-thirds of the property of the county and imposing upon the one-third a burden that should not be borne by all of it. This opinion was approved in McInery, Sheriff, v. Huelfield, 75 S.W. 237, 25 Ky. Law Rep. 272. After the rendition of these opinions, the appellant Mrs. Devoe brought this suit against the sheriff and his sureties, the county judge, and the members of the fiscal court, the treasurer of the county, and the county of Kenton, alleging, in substance, in the petition as amended that she had been for five years the owner of $40,000 worth of property situated in Kenton county outside of the city, which was assessed for taxation for state and county purposes for the years 1898 to 1901 inclusive, and that during these years the county judge and the five justices of the peace who were elected from and resided outside of the city of Covington acted as the fiscal court of Kenton county, the two justices located within the city not acting with the fiscal court as above composed; that the county judge and the five migistrates levied a tax upon all the property in the county outside of the city of Covington, for each of said years, to raise funds to pay the salaries of the county officers, and for road and bridge purposes, no part of said taxes being levied upon property situated within the city; that for the years named the assessed valuation of the property in the city was about three-fourths of the entire assessment of the county, and that all the property in the county within and without the city was lible for its ratable proportion of the expense of defraying the salaries of officers and for the maintenance of the roads and bridges; and that, by reason of the imposition of this entire tax upon the property outside of the city, property so situated was burdened with taxes grossly in excess of its just and legal proportion. She further averred that the taxes were involuntarily paid, being coerced by threats of levy and distraint, and paid in ignorance of her legal rights; that the levies made by the fiscal court as so constituted and in the manner stated were illegal; that the money collected, except a small portion of same, had been paid by the sheriff to the county of Kenton, or its treasurer, and expended for the use and benefit of the persons and funds for which it was imposed. She asserted that the taxes so illegally collected constituted a trust fund for the benefit of the persons from whom it had been wrongfully exacted. She prayed for judgment in her own behalf for $700, the amount of taxes illegally exacted from her, and judgment in behalf of each of the other taxpayers similarly situated, and asked that the case be referred to the master...