Long v. City of Louisville

• Citation: 97 Ky. 364,30 S.W. 987
• Parties: LONG et al. v. CITY OF LOUISVILLE. SALE v. SAME. HOSKINS v. SAME.
• Decision Date: 01 May 1895
• Court: Court of Appeals of Kentucky

30 S.W. 987

97 Ky. 364

LONG et al. v. CITY OF LOUISVILLE.

SALE v. SAME.

HOSKINS v. SAME.

Court of Appeals of Kentucky.

May 1, 1895

Appeals from circuit court, Jefferson county.

"To be officially reported."

Separate proceedings by the city of Louisville against John S. Long and others, against Clarence Sale, and against R. B. Hoskins to enforce the collection of taxes. From judgments for plaintiff in each proceeding, defendants appeal. Affirmed.

Lane &amp Burnett and R. W. Wooley, for appellants.

Laf Joseph, for appellee.

GRACE J.

These several causes,-coming from the Jefferson circuit court, and involving the same question,-by consent, are heard together. The main question presented by each appeal is one of taxation by the city of Louisville under authority of the old charter all arising prior to the act incorporating cities of the first class in Kentucky, passed by the legislature July 1 1893; the taxes claimed against Long and wife being for the years 1888 and 1889, and against Sale for 1888-1892, and against Hoskins for 1888. Each appeal arising on suits filed in the court below by the city of Louisville by the several parties before named, and judgment having been rendered in each case in favor of the city for the amount of the taxes claimed, the parties severally prosecute their appeals.

The taxes claimed to be due by these several parties defendant in the court below arose for the several years designated, under and by authority given to the city of Louisville by the act of the legislature of date May 12, 1884, entitled "An act to revise and amend the tax laws of the city of Louisville," and by it the city of Louisville was invested with the power, and charged with the duty, on the conditions and under the limitations therein set out, of assessing, levying, and collecting ad valorem taxes, at certain rates. This act fixed the maturity of these taxes, provided for interest on them after maturity, secured their payment by lien on the property assessed, and gave the right to have the lien enforced by an equitable action, in the event that the ministerial remedies for these collections failed; and the original act, and an amendment to same, of date May 1, 1886, provided that in such actions the tax bills, authenticated by the fac simile signature of the assessor, should be evidence sufficient to make out a prima facie case in behalf of the city. It is conceded by counsel for appellants that the acts of May 12, 1884, and May 11, 1886, authorized the assessment and levy of the taxes sued for; that those acts declared a lien on the property assessed for the payment; and that they allowed interest, as claimed, and conferred jurisdiction on the Louisville chancery court by suit. The taxes sued for were so assessed and levied under those statutes, and remained unpaid when these suits were filed. The contention of the city of Louisville is that these acts remain in full force and effect as to all taxes assessed and levied prior to the passage of the general act of incorporation of July 1, 1893, while the contention of the appellants is that on the adoption of this act of 1893 all prior laws, pertaining to the city of Louisville, authorizing the collection of any taxes past due and unpaid, were thereby repealed, and that, authority to collect same not being given in the new law, none exists. Appellants insist, first, that it belongs to the legislative department of the government, alone, to prescribe the method and designate the agencies which may be lawfully invoked for the collection of taxes, even where lawfully assessed and levied, and that it is not within the power or authority of the judicial departments to establish and to afford these remedies, where the legislature has failed to do so. And, second, appellants say that these several municipal governments are mere local agencies of the state, from whom they derive all the authority they possess; that without this authority they can do nothing, and that while, prior to the adoption of the new constitution, of date September 28, 1891, the state might from time to time grant such charters to the several cities in the commonwealth, and change, alter, and amend same, at will, yet that after the adoption of the present constitution all such special legislation was prohibited, and that these cities could only be incorporated under general charters, provided for, and applicable alike to, each city of that particular class which was by the constitution authorized to be made; and that after the date of the act incorporating cities of the first class, applicable at the time only to the city of Louisville, all previous acts of incorporation, of every character and kind, including the right to assess, levy, and collect taxes past due, were abrogated, annulled, and forever destroyed. And appellants contend, further, that there being no authority conferred by the new charter, of July 1, 1893, for the enforcement and collection of any tax prior to that year, and sued for in these actions, therefore same cannot be maintained; that there is now no remedial process known to the constitution and the law for the collection of any tax assessed, levied, due, and unpaid prior to July 1, 1893. Appellants say that this legislative will or authority to so collect has not been given, and cannot be implied and exercised by the courts. Such seems to be the contention of appellants, as gathered by an examination of the brief of counsel on file in these suits.

Counsel for appellants have made a most exhaustive examination and collection of authorities in support of their several propositions, and without undertaking to embody same in this opinion, or to review specifically each one, we think we may say that much for which appellants contend seems to be good law, and amply supported by the authorities cited. For instance, it is certainly true that the constitution provides, by section 156, for the division of the several cities and towns of the commonwealth into six classes, for the purposes of their organization and government, and that the organization and government of each class should be by general laws, so that each municipal corporation of the same class should possess the same power, and be subject to the same restrictions. Section 166 of the constitution continued in force all previous acts of incorporation of the several cities and towns of the state until such time as the legislature should make the division into classes, and provide by general laws for the government of same (as in case of city of Louisville, July 1, 1893), and providing that thereupon the former charter and acts of incorporation, and amendments thereto, should cease, and become inoperative and void. This provision, however, as we shall see hereafter, is limited by other provisions, certainly in so far as back taxes are concerned. Counsel also cite section 171 of the constitution as providing that all taxes shall be collected by general laws. This section, however, we apprehend, is prospective only, and not retrospective. Counsel for appellants are doubtless correct in the general proposition that taxes by municipal governments can only be assessed levied, or collected by the special and particular laws granted and passed by the legislature for this purpose. They are doubtless correct in saying that a tax once authorized, assessed, and levied, though remaining uncollected, may be either destroyed, or its collection rendered impossible, by the repeal of the laws theretofore in force authorizing such assessment, levy, and collection. Counsel are doubtless correct in saying that, strictly speaking, and within the line of good authority, taxes are not debts; that they do not lie, in any agreement or contract between the citizen and the state, or the municipal authority, but that they are, properly speaking, imposts laid by authority of the government, as the state, or a city or county; and further, that, in the absence of an express declaration and authority, taxes are not a lien on the property assessed; neither do they bear interest after maturity, unless expressly so provided by the legislative authority; neither does the jurisdiction of courts of equity attach, nor can it be made the medium or authority for the enforcement of any lien, or for the collection of taxes, without express authority. These matters are, however, all dependent on the question as to whether these acts of 1884 and 1886, in so far as they pertain to taxes levied under and by that authority, are still in force. Counsel for appellants cite section 59 of the constitution, and the several subsections thereof, prohibiting special legislation. This section they commend highly, and...