Greer v. City of Covington

• Decision Date: 03 December 1885
• Citation: 2 S.W. 323,83 Ky. 410
• Parties: GREER v. CITY OF COVINGTON.
• Court: Kentucky Court of Appeals

2 S.W. 323

83 Ky. 410

GREER v. CITY OF COVINGTON.

Court of Appeals of Kentucky.

December 3, 1885

Appeal from circuit court, Kenton county.

A. G Simrall, for appellant, Greer.McKee & Finnell, for appelleeCity of Covington.

HOLT J.

The principal question presented by this appeal is whether the appellee, the city of Covington, can maintain a suit against the appellant, A.

L Greer, for the municipal taxes of several years owing by him, and which annually amounted to over $100, and had been due for more than six months before the bringing of the action.

The city charter of March 2, 1850, provides that if a person's taxes are not paid by a certain time, that the city treasurer shall indorse the tax-bills"Delinquent," and return them to the city clerk, who shall add thereto 15 per centum, and then deliver them to the city collector, who may at once proceed to collect them by distraint.

The seventh section of an act of the legislature of March 6, 1876, (2 Acts 1876, p. 32,) amendatory of the charter, provides: "Whenever the annual or revenue taxes assessed against any person, or against joint owners, or any corporation or partnership, shall amount to one hundred dollar or over, and shall have been due and unpaid for more than six months, said city council may cause the same to be sued for in the name of the city of Covington, in the circuit court, and this shall apply to the taxes now due, as well as those that may hereafter become due, and whether said amount shall accrue from one assessment, or successive assessments.Said city shall have the power, in such cases, to sue for and collect the taxes, and enforce its lien."

It is urged that the lower court should not have entertained jurisdiction of the cause.It is a well-settled general principle that when a statute gives a right, and also provides a specific and adequate remedy for its enforcement, and it appears, with reasonable certainty, that the legislature intended it as the only one, that then a resort to any other mode of enforcing the right is forbidden by implication.Cases may, perhaps, arise of such a peculiar character, and in which the prescribed remedy may prove ineffectual, that a resort may be had to judicial proceedings; but if the necessity does not exist, then the particular remedy furnished by the statute must be held to include all others; and this is upon the ground that such was the legislative intent.

If a municipal corporation has been given a speedy and adequate remedy for the collection of its taxes, (as did the charter in this instance by distraint,) there is no reason or necessity, even if it were permissible, to imply the existence of any other remedy, or to allow it to sue for them.We are aware that it has been held by some courts that a tax, when legally assessed, creates an obligation upon which the municipalty may sue in assumpsit, and may do so although a summary mode for its collection may have been provided by statute.It is unnecessary, however, to consider the correctness of this position, because, in this instance, the legislature has not only provided a summary way, but has, by subsequent legislation, also authorized its recovery by suit; and without any conditions, save that the annual tax due must amount to $100 or over, and have been due over six months.It has not seen fit to provide that the latter remedy can be adopted only when the other has proven futile.The assessment or collection of taxes is not an inherent power of the judiciary.It is not a tax-gatherer.Both public policy and private right so dictate.If the means provided by the law-making power are insufficient, then resort must be had to amended legislation.This seems to be the rule as declared by the supreme court of the United States and adopted by this court.

It is not our province, however, to discuss the policy of legislation; and we also recognize the rule that the judiciary may be called upon to act in a judicial way in the collection of taxes, when the law so provides.Says Mr Cooley: "What method shall be devised for the collection of a tax, the legislature must determine, subject only to such rules, limitations, and restraints as the...