Appeal
from Circuit Court, Jefferson County, Chancery Branch, Second
Division.
"To
be officially reported."
Proceedings
by the Commonwealth against Henry Glover to have property of
the latter assessed for taxation. From an order dismissing
the proceedings, plaintiff appealed to the circuit court
where an order was entered dismissing the proceedings as to
certain items in the statement not sufficiently described
and plaintiff appeals. Affirmed.
LASSING
J.
Two
questions are involved upon this appeal: First, the right of
one who is proceeded against by an auditor's agent to
require the agent to verify his statement; and, second, the
right of the alleged delinquent to require that the
Auditor's agent shall make his statement so describe the
property sought to be assessed that it can be identified.
Under
the provision of section 4260 of the Kentucky Statutes
(Compilation of 1909), which is as follows: "It shall be
the duty of the revenue agent, and the sheriff in each county
shall have like power and authority as the revenue agent for
said county, to cause to be listed for taxation all property
omitted by the assessor, board of supervisors, board of
valuation and assessment or railroad commission, for any year
or years. The officer proposing to have the property assessed
shall file in the clerk's office of the county in which
the property may be liable to assessment, a statement
containing a description and value of the property proposed
to be assessed, and the value of the corporate franchise, if
any, and the name and place of residence of the owner, his
agent or attorney, or person in possession of the property,
and the year or years for which the property is proposed to
be assessed. The clerk of the court shall thereupon issue a
summons against the owner to show cause before the next
regular term of the county court, which does not commence
within five days after service of such summons, why such
property or corporate franchise, if any, shall not be
assessed at the value named in the statement filed, but no
judgment by default or otherwise shall be rendered against
such alleged owner unless the statement filed shall contain
such a description of the property sought to be assessed as
will enable the court to identify it. The summons shall be
executed by the sheriff of the county by delivering a copy
thereof to the owner, if in the county; if not, then to his
agent, attorney or person in possession of the property. At
the next regular term of the county court after the summons
has been served five days, if it shall appear to the court
that the property is liable for taxation, and has not been
assessed, the court shall enter an order fixing the value
thereof at its fair cash value, estimated as required by law;
if not liable for taxation, he shall make an order to that
effect, and the officer instituting said proceeding shall be
liable on his official bond to the defendant for all costs
incurred by him in defending said proceeding, and this shall
apply to all courts to which said proceedings are taken. The
judgment of the court shall have the same force and effect as
the judgment of the court in civil cases. Either party may
appeal from a decision of the county court to the circuit
court and then to the Court of Appeals, as in other civil
cases, except that no appeal bond shall be required where the
appeal is by the revenue agent or sheriff. If the court shall
decide that the property is liable to assessment, and has not
been assessed, the clerk of the county court shall enter a
judgment on a book kept for that purpose assessing said
property and fixing the value thereof, and he shall certify
the assessment of said property and its value, together with
such other facts as may hereafter be required to appear in
said judgment
by section 6 of this article, to the Auditor of Public
Accounts, and likewise to the sheriff of the county, together
with the amount of penalty and costs of assessment, in order
that the taxes due the commonwealth and county may be
collected, with the penalties and costs. All persons owning
property which may be assessed as herein provided, shall, in
addition to the taxes, pay the costs of the proceedings and a
penalty of twenty per centum on the amount of the state and
county taxes due, except where such property shall have been
duly listed by the owner thereof. The taxes, costs and
penalties shall be collected and accounted for as other taxes
and penalties are required to be collected, and by the same
officers. As compensation for his services in causing such
property to be assessed, the officer filing the statement
shall be entitled to the penalty of twenty per centum, and
the same shall be paid to him by the county tax collector
collecting said county taxes and penalty thereon within
thirty days after receiving same, and by the officer of the
state collecting or receiving state taxes within thirty days
after receiving same. The county clerk shall enter all such
assessments in said book to be kept for that purpose, showing
the date of the assessment, the name of the person against
whom the assessment is made, the location and quantity of the
property assessed, and the value thereof; and the officer
collecting the taxes shall, when the same is paid, notify the
clerk of its payment, which payment shall be noted by the
clerk opposite the entry of such assessment"--Holland L.
Anderson, revenue agent for the state at large, filed the
following statement against appellee in the Jefferson county
court:
"Plaintiff,
commonwealth of Kentucky, by Holland L. Anderson, duly
appointed, qualified and acting revenue agent for the state
at large, states that the defendant, Henry Glover, was on
September 1, 1907, a resident of Jefferson county,
Kentucky. Plaintiff states that the said defendant on
September 1, 1907, was the owner of the following personal
property, to wit: Cash on hand $600; cash on deposit in the
bank, $6,600; secured notes, $38,000; including lien notes,
assigned to him and secured by mortgage on land in Woodford
county $25,000, unsecured notes $3,000; two hundred and
sixty-five shares of stock in foreign corporations not
paying taxes on all their property to the state of Kentucky
$25,000; fifteen bonds, $14,000; household effects, $2,000;
library, $500; pictures, $500; jewelry, $250; all of which
property was subject to assessment for state and county
purposes for the year 1908, and no part of which was
assessed by the assessor or any other assessing officer of
the state or this county, at or on the date aforesaid, or
for the year named. Plaintiff states that the assessment of
said property at and on the date above mentioned was
omitted from taxation and is yet omitted, and that none of
said property has ever been listed. Plaintiff states that
all of the property of the defendant as herein mentioned,
of the fair cash value as herein stated, was subject to
assessment for state and county taxes for the year 1908,
and that the plaintiff is now entitled to recover and
receive of the defendant said state and county taxes on
said property for the year named. Wherefore plaintiff prays
that this court may hear and determine the amount,
character, and value of the property omitted by the
defendant from taxation for the year 1908, and assess same
against said defendant at its fair cash value, estimated at
the price the same would bring at a fair voluntary sale;
that said order of assessment be certified by the clerk to
the auditor of this state and the sheriff of this county;
that the sheriff collect said taxes on said assessment, as
other taxes are collected by him, together with the costs
and a penalty or fee of twenty per cent. due the relator,
Holland L. Anderson, revenue agent for the state at large.
Plaintiff asks for all other proper relief."
Thereafter
the agent filed the following amended "statement":
"The
plaintiff, commonwealth of Kentucky, by Holland L.
Anderson, duly appointed, qualified, and acting revenue
agent for the state at large, for amendment to its original
statement and in order to make same more specific,
definite, and certain, and to conform with the order of
this court, states: That on September 1, 1907, the
defendant, Henry Glover, was the owner of the following
personal property, not set forth in the original statement,
in such a specific way as to conform with the rule of this
court: Accounts, $8,000; 200 shares of foreign railway
stock, consisting of Pennsylvania, Reading, Atchison,
Illinois Central, Union Pacific, Southern Pacific, Chicago,
Milwaukee & St. Paul, Southern Railway, Baltimore & Ohio,
Northern Pacific, $16,000; three hundred and fifty shares
of foreign industrial stock not paying taxes on same to the
state of Kentucky, to wit, American Car & Foundry Stock,
Amalgamated Copper, American Locomotive, American Smelting
& Refining, American Sugar Refining Company, American
Tobacco Company, Pacific Mail, People's Gas, Pullman
Palace Car, Virginia-Carolina Chemical, Pressed Steel Car,
Westinghouse Electric and Western Union, $25,000;
twenty-five traction bonds, to wit, Rochester, St. Louis
United Railway, Springfield, Louisville Railway, New
Orleans Railway & Light, Pascagoula Street Railway, Seattle
Electric, $25,000; twelve city of Louisville bonds, eight
Louisville water bonds, twenty railroad bonds, to wit,
Pennsylvania, Reading, Atchison, Illinois Central, Union
Pacific, Southern Railway, Chicago, Milwaukee & St. Paul,
Southern Pacific, Baltimore & Ohio, and Northern Pacific,
$40,000; eighteen industrial bonds of
local corporations organized under the laws of the state of
Kentucky,
...
