Johnston v. Louisville
| Decision Date | 11 November 1875 |
| Citation | 74 Ky. 527 |
| Parties | Johnston v. Louisville. |
| Court | Kentucky Court of Appeals |
The city of Louisville having recovered judgment in the Louisville Chancery Court against the appellant for city taxes, levied upon certain real property in said city, in which the appellant owns a life-estate, and execution having issued thereon, she replevied it, and thereafter moved to quash the replevin bond on the ground that the court had no jurisdiction of the subject-matter of the action, and that the judgment was therefore void. Her motion was overruled, and she has appealed from the order overruling her motion to quash the bond, and also from the original judgment.
We do not concur with appellant's counsel that the judgment is void. The suit was to recover over six hundred dollars claimed to be due for taxes; and even if counsel be right in supposing that no suit can be maintained by the city to enforce the payment of taxes, it does not follow that the court had no jurisdiction. In actions for the recovery of money the jurisdiction of the court of the subject-matter depends alone upon the amount claimed, and can not be in any way affected by the nature of the demand sued for.
The judgment was therefore valid until reversed or set aside, however erroneous it may have been, and there was no error in overruling the motion to quash the bond.
The remaining question is, whether the judgment for the taxes claimed is erroneous; and this wholly depends upon the further question, whether an action will lie in the name of the city to enforce the payment of taxes. And it is proper here to remark that the sum sued for was a general tax, and not an assessment imposed to pay for local improvements, which is not technically a tax. (Matter of Mayor of New York, 11 Johnson, 77; Sharp v. Spier, 4 Hill, 76.)
It will be well before entering upon a discussion of the particular features of the case to lay down a few general principles relating to the law of municipal corporations, which once rightly understood, will simplify the question to be decided.
First — It is a rule that when a statute gives a new right or a new power, and at the same time provides a specific, full, and adequate mode of executing the power or enforcing the right given, the fact that a particular mode is prescribed will be regarded as excluding by implication the right to resort to any other mode of executing the power or of enforcing the right. (Dillon on Municipal Corporations, sec. 653; 2 Burrows, 1157; 6 Mass. 286; 1 Blackford, 39; 1 Mo. 147, 428; 2 McCord, 117; 36 Mo. 543; 11 Mass. 363; 12 Mass. 482; 4 Wend. 667; 4 Ind. 431; 1 Ind. 285.)
Second — If the remedy given by the statute be not adequate, then there will be no implication that it was intended to be exclusive, and resort may be had for the execution of the power or the enforcement of the right to the ordinary process of the law — i. e., judicial proceeding.
Third — A municipal corporation possesses no powers except such as are expressly granted, or are necessarily implied from or incident to such as are expressly granted. (25 Iowa, 170; 4 Hill, 76; 1 Blackford, 338; Blackwell on Tax Titles, 448.)
The charter of Louisville gives to the city government power to levy and collect taxes, and prescribes a mode for the enforcement of payment, but it is claimed by counsel for the city that the mode and means prescribed are not full and adequate, and that the city may therefore proceed by due process of law — that is, by appropriate action or suit in court — either to recover a personal judgment or to enforce the lien given by the charter on the property on account of which taxes are due.
Section 66 of the charter provides that the general council "shall have power to make all needful ordinances regulating the assessor and assessment of taxes; the receiver and collection of taxes; the advertising, sale, and redemption of property, and the conveyance of same when sold, to enforce payment of taxes as herein authorized."
Sections 73 and 74 provide that the tax receiver "may levy upon any lot or lots of ground, house or houses on leased ground," in said city belonging to persons owing taxes, "and after making the levy shall advertise the same in one of the daily newspapers in said city, to be sold on a day designated in the advertisement, which shall be by daily insertions for at least five days before the day of sale . . . which sale shall be between the hours of ten o'clock A. M. and three o'clock P. M.," at the court-house door in said city. "Before selling any property as above . . . the receiver who made the levy shall give notice to the owner, or shall write to him on the first day of publication of notice of sale as above," etc.
"Within two weeks after making a sale of any property for taxes the receiver of taxes making the sale shall render to the general council a full report of his proceedings, including a list of the property sold, . . . and he shall also hand in with the report a copy of the newspaper containing an advertisement of the sale;" and section 74 also provides that the receiver shall make affidavit that he has complied with all the requirements of the charter and ordinances "in relation to making the levy, advertising, giving notice to owners, and selling."
Although much is said in these sections in regard to advertising and making and reporting sales, they do not any where in express words authorize sales to be made, and counsel for the city insists that no such authority is conferred.
It is impossible to read these sections and avoid the conclusion that the legislature intended to give the receiver power to sell, and supposed it had done so. Authority is given to levy and to advertise for sale, and the time of day and place when and where sales are to be made are prescribed; notice is required to be given to owners of property of the time when sales are to be made; sales made are required to be reported, and the receiver is required to swear that he has discharged all his duties in regard to selling.
If he has not power to sell, then it is entirely certain the legislature did not confer upon him the power intended to be conferred, and which it was supposed had been conferred. Several things directed to be done are worse than useless, and some are impossible, unless there is power to sell.
If the power is not granted in express words, it is necessarily to be implied from the language used,...
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