Kentucky Union Co. v. Commonwealth

• Decision Date: 25 March 1908
• Citation: 108 S.W. 931,128 Ky. 610
• Parties: KENTUCKY UNION CO. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

108 S.W. 931

128 Ky. 610

KENTUCKY UNION CO. v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 25, 1908

HOBSON J., dissenting.

Appeal from Circuit Court, Leslie County.

"To be officially reported."

Proceedings by the commonwealth of Kentucky against the Kentucky Union Company to forfeit land owned by defendant for the nonpayment of taxes. From a judgment for plaintiff, forfeiting the land and authorizing a sale thereof by the commonwealth, defendant appeals. Reversed.

W. B Dixon, Louis B. Wehle, and Cleon K. Calvert, for appellant.

Ira Fields and James H. Jeffries, for the Commonwealth.

LASSING J.

This appeal presents for consideration questions as to the constitutionality of article 3 of the revenue and taxation act, approved March 15, 1906 (Acts 1906, p. 115, c. 22), and of practice and procedure thereunder. On the 20th day of April, 1907, the commonwealth of Kentucky, by Ira Fields commonwealth's attorney, in and for the Thirty-Third judicial district of Kentucky, which includes Leslie county, filed its petition in the Leslie circuit court against appellant, alleging, among other things, that on the 12th day of June, 1872, the commonwealth of Kentucky granted to Stephen G. Reid, by letters patent, 40,000 acres of land in Perry, now Leslie, county, Ky. a copy of the grant being filed with, and as a part of, the petition. The petition also described the land by metes and bounds, courses and distances, and alleged that the corporate defendant, appellant here, under, through, and by virtue of divers mesne conveyances from the patentee, was the claimant of said tract of land under said patent. The petition further alleged that appellant and its predecessors in title had failed to list said tract of land, or any part of it, for assessment and taxation, as of September 15, 1901, September 15, 1902, September 15, 1903, September 15, 1904, and September 15, 1905, and had so failed to list the same as of each and all of said dates, and had failed to pay the taxes charged, and which should have been charged against said tract of land assessable as of said dates, and had failed to pay such taxes assessable as of any of said dates. The prayer was for judgment against appellant, forfeiting and transferring to the commonwealth of Kentucky all of appellant's claim, title, right, and interest in and to all of said tract of land and for costs. By an amended petition the prayer was enlarged and asked for a sale of all the title, interest, and claim of appellant in and to all of said tract of land. Appellant appeared and filed general demurrer to the petition at September rules, 1907, which was overruled at the regular October term. The appellant elected to stand on its demurrer, and declined to answer. At the same term the case was set down for hearing and trial before a jury, and, upon a verdict in favor of plaintiff, the court entered a judgment forfeiting and transferring to the commonwealth the right, title, interest, and claim of appellant in and to the said tract of land described in the petition and judgment; and further adjudged that the title so forfeited and transferred to the commonwealth be sold by the master commissioner. The judgment contains the usual provisions for a sale by a master commissioner, and authorizes the commissioner to sell said tract of land as a whole or in parcels to suit purchasers. By further provision of the judgment, the master commissioner was directed not to advertise the sale until after the close of the regular February, 1908, term of court. Complaining of errors in this judgment, appellant prosecutes this appeal.

Appellant, confessing as true the allegations of the petition, relies for a reversal upon the alleged unconstitutionality of the act upon which the proceedings were based, and further claims that as the petition did not allege, nor the judgment ascertain, what parts of the 40,000 acres had been occupied, and taxes paid thereon by occupants, the petition is defective, and the judgment erroneous. The questions thus presented for determination by this court are: (1) Is article 3 of the revenue and taxation act, approved March 15, 1906, a constitutional exercise of legislative authority? (2) Is the judgment erroneous, in that the petition fails to allege or the judgment to ascertain the various persons who had occupied and paid taxes on lands within said 40,000-acre boundary for five years next preceding the judgment of forfeiture? (3) Did the court err in entering judgment of sale at the same term of court at which the judgment of forfeiture was entered? The constitutionality of this article was considered and upheld by this court in an exhaustive opinion written by Chief Justice O'Rear in Eastern Kentucky Coal Lands Corporation v. Commonwealth, 106 S.W. 260, 32 Ky. Law Rep. 129, and it is not necessary to again refer to the various objections there urged and passed upon by the court. Upon further consideration, we are satisfied that the conclusions there reached are correct.

It is contended by appellant that under the act of 1906 a failure to list land for assessment and to pay the taxes thereon for the years 1902, 1903, 1904, 1905, and 1906 is visited with a different and heavier penalty than was provided by law in force during those years. It is by no means certain that the act accomplishes any such result; but, if it did, it would result in making void only the penalties and interest provided for the default, and would not affect any other portion of the act. The act expressly provides that it is enacted in detail, and that each provision shall stand by itself, unaffected by any other portion that for any reason might be invalid. The act is a comprehensive revenue measure, and this result would follow had there been no such provision. It was clearly competent for the Legislature to prescribe that the amount to be paid to remove cause of forfeiture should be the taxes, without interest or penalties, for the years named; and if, in adding penalties and interest, the Legislature exceeded its constitutional authority, the article would be void only in so far as it exceeded such authority, and the penalty and interest would be eliminated. The penalty and interest can be stricken out, and that which remains is complete within itself, and capable of being executed in accordance with the apparent legislative intent. Similar objections were urged in Hoke v. Commonwealth, 79 Ky. 567, and Muir's Adm'r v. City of Bardstown, 120 Ky. 739, 87 S.W. 1096, and in each case where penalty was provided the act was held void only to the extent of the penalty imposed.

No question, however, concerning the validity of the provisions of the act as to what penalties the appellant should pay for its delinquency during the years 1902, 1903, 1904, 1905, and 1906 arises in this case. It has not attempted either to list its land or offered to pay any taxes, though the act gave ample time, after it became a law, for compliance with its provisions. Mulvey v. Boston (Mass.) 83 N.E. 402 (decided January 14, 1908); Terry v. Anderson, 95 U.S. 628, 24 L.Ed. 365; Black on Tax Titles, § § 279-286. Had the appellant attempted to comply, it could then have contested or disregarded any unconstitutional provision of the act. As we held in the case of Eastern Kentucky Coal Lands Corporation v. Commonwealth, 106 S.W. 260, 32 Ky. Law Rep. 129, it was competent for the Legislature, in the exercise of the taxing power, to provide a forfeiture for a failure to list property for assessment and pay the taxes due thereon. The penalty of forfeiture provided by the act is not for a past delinquency, but for a failure to list and pay after the act went into effect, and within the time there provided. We are here concerned only with this feature of the act, and it has no semblance of an ex post facto law.

Appellant contends that, if the act is constitutional, the petition is defective, and that the general demurrer thereto should have been sustained, because the petition fails to disclose what...