Louisville Water Co. v. Commonwealth

• Decision Date: 27 March 1896
• Citation: 34 S.W. 1064
• Parties: LOUISVILLE WATER CO. v. COMMONWEALTH et al.
• Court: Kentucky Court of Appeals

34 S.W. 1064

LOUISVILLE WATER CO. v. COMMONWEALTH et al.

Court of Appeals of Kentucky.

March 27, 1896

Appeal from circuit court, Jefferson county.

"Not to be officially reported."

Suit by the commonwealth of Kentucky and H. A. Bell, sheriff, against the Louisville Water Company, to recover taxes due for the year 1886. Judgment for plaintiffs, and defendant appeals. Affirmed.

T. L Burnett and Lane & Burnett, for appellant.

William J. Hendrick and Helm & Bruce, for appellees.

GUFFY J.

This appeal is prosecuted by the Louisville Water Company from a judgment rendered by the Jefferson circuit court, law and equity division, in the suit of the commonwealth of Kentucky and H. A. Bell, sheriff of Jefferson county, against the Louisville Water Company, to recover for taxes due for the year 1886. The appellant interposed several defenses, all of which were deemed insufficient by the court below, and appellant now insists that the court below erred in rendering judgment against it, and asks a reversal. The authority for reporting the tax list to the clerk of the county court is to be found in section 25, art. 6, c. 92, of the General Statutes, commonly called the "Hewitt Bill." The material part of the section is as follows: "It shall be the duty of the sheriff to report to the county clerk all lists or parts of lists of property which may for any year or years, have been omitted by the assessor, and all property which corporations may have omitted, for any years or years to have listed with the auditor, and said clerk shall enter the same on the assessor's book for his county, and certify the same to the auditor on or before the last day of January in each year." The law does not specify how, or in what manner or form, the report shall be made; and as it appears that the clerk accepted the report, and certified same as required by law, the report of the sheriff and certificate of the clerk must be held sufficient for the purposes of this action. The act of 1882, exempting appellant from the payment of taxes, had been decided to be unconstitutional and void by this court in the case of Clark v. Water Co., 90 Ky. 515, 14 S.W. 502. Hence that act cannot be relied on for reversal. The question of the constitutionality of that act was not decided by the supreme court of the United States. Therefore the decision in the case of Water Co. v. Clark, 143 U.S. 1, 12 S.Ct 346, has no application to this case.

The plea of limitation cannot avail. The suit was brought, and summons issued, January 9, 1891, which, by express provisions of the Code of Practice, is made the commencement of the action, and this court has often so held. Hence the decisions of the courts of other states as to what constitutes the commencement of an action can have no application to the case at bar; and, besides, it might well be held that the statute did not begin to run until the expiration of the time during which the assessor might have made the assessment, which in 1886 would have been the last of April. The act of May 17 1886, before...