Commonwealth v. City of Covington

• Decision Date: 28 January 1908
• Citation: 128 Ky. 36,107 S.W. 231
• Parties: COMMONWEALTH v. CITY OF COVINGTON.
• Court: Kentucky Court of Appeals

107 S.W. 231

128 Ky. 36

COMMONWEALTH v. CITY OF COVINGTON.

Court of Appeals of Kentucky.

January 28, 1908

O'Rear C.J., and Nunn and Carroll, JJ., dissenting.

Appeal from Circuit Court, Campbell County.

"To be officially reported."

Action by the commonwealth against the city of Covington to enforce the payment of a tax. Judgment for defendant, and plaintiff appeals. Affirmed.

John W Heuver, for the Commonwealth. F. J. Hanlon, for appellee.

SETTLE J.

This is an appeal from a judgment of the Campbell circuit court sustaining a demurrer to and dismissing the appellant's petition. The action was instituted by the commonwealth of Kentucky to recover of the appellee, city of Covington, taxes alleged to be due the state, county of Campbell, and Courthouse district of Campbell county. It is alleged in the petition that the city of Covington, which is a city of the second class, situated in Kenton county, is the owner of lands, reservoirs, water mains, pumping stations, engines etc., situated in Campbell county and used as a water plant or system for supplying water to the inhabitants of the city of Covington and certain citizens of Campbell county residing near its reservoir and water mains; that the assessable value of the property is $785,000; and that at the time of the institution of the action there was due as a tax thereon, for the year 1906, to the commonwealth, county, and Courthouse district, at the rate of 50 cents to the state, 17 cents to the county, and 6 cents to the Courthouse district on each $100 worth of the property, the aggregate sum, including interest, penalty, and costs, of $6,355.99. The petition sets out the assessment of the property in due form, proper issual of the tax warrant, the action of the sheriff in demanding the tax, failure of appellee to pay it, the levy upon and sale of the property for same, and its purchase by the sheriff for the state, county, and Courthouse district. By the prayer of the petition possession of the property was asked, and, if not to be had, that the property be placed in the hands of a receiver and by him operated, so that the rents and income applied to the taxes due may be liquidated or that it be sold to pay them.

The question presented by this appeal is not a new one, and no valid reason is furnished by the brief of appellant's counsel for distinguishing this case from others in which this court has held that such property as is here sought to be taxed cannot be taxed. Its exemption from taxation is specifically provided for by section 170 of the present Constitution, which declares: "There shall be exempt from taxation public property used for public purposes." The power to provide and maintain a waterworks system is conferred upon the city of Covington by section 3058, subsecs. 4-25, Ky. St. 1903, applicable to cities of the second class. "A municipality is an arm of the state, an 'effluence' from its sovereignty, and is an instrumentality by which the state seeks to give to its citizens the best government possible." City of Owensboro v. Commonwealth, 49 S.W. 320, 44 L. R. A. 202, 20 Ky. Law Rep. 1282. The city of Covington is but a political subdivision of the state, intrusted with the power to maintain its waterworks for the comfort, health, and safety of its inhabitants. The fact that water rents are paid by the inhabitants of the city using the water does not affect the question. There is nothing connected with the work which is not of a governmental and public nature.

We cannot better express our view of the question under consideration than to reiterate what was...