Louisville Water Co. v. Commonwealth

• Decision Date: 30 October 1889
• Parties: LOUISVILLE WATER CO. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

12 S.W. 300

89 Ky. 244

LOUISVILLE WATER CO. v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 30, 1889

Appeal from Louisville law and equity court.

"To be officially reported."

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

Helm &amp Bruce, for the Commonwealth.

HOLT J.

The property of the Louisville Water Company not having been assessed for state taxes for the years from 1882 to 1885 inclusive, the sheriff of the county, in obedience to statutory provision, returned a list of it for each of those years to the county court clerk, who entered the same upon the assessor's books, and certified it to the state auditor, and also to the sheriff for collection. The company refused payment, claiming that it was exempt from taxation under an act of the legislature. It is a corporation, and, as its name indicates, supplies the city of Louisville with water. The property assessed was that in use for this purpose. It could not, therefore, be seized and sold by a collecting officer, as this would deprive the city of water. Its safety, as well as the health and comfort of its citizens, required the exercise of the corporate franchise, and forbade interference with it by a sale of the means necessary to operate it. The sheriff thereupon brought this action in his own name, but subsequently, by an amended petition, united the commonwealth as a co-plaintiff, asking that the company be compelled to show cause, if any existed, why it should not, within a given time, pay the taxes into court, and, in the event it failed to do so upon the court's order, that it be placed in the hands of a receiver, and its receipts applied to their payment.

Various defenses were presented. But one question requires notice however, as it is decisive of the case. The lower court, upon final hearing, was of the opinion that the company was liable to taxation, and ordered it to pay the taxes into court within a certain number of days. This it declined to do, and thereupon a receiver was appointed, and the company has appealed. It was held by this court, in the case of Baldwin v. Hewett, 11 S.W. 803, that taxes could not be recovered by suit in the absence of legislative authority: and, there being no statute to this effect in this state, save as to railroad companies, an action for such a purpose could not be maintained, even in the absence of any other adequate remedy. There an administrator had failed for several years to list and pay the taxes upon the assets in his hands, consisting altogether of choses in action. When the suit was brought seeking a recovery against him as administrator, he had distributed the estate, and it had been removed by the distributees out of the state. It is urged that this case differs materially from that one, that here the statute gives a lien upon the property for the payment of the taxes; and that the proceeding is in rem, no personal judgment being sought. If, however, no right exists to use the courts as a vehicle for the collection of tax claims, we fail to see any difference between the two cases. It is said, however, that in the case cited an adequate remedy in fact existed, but was ineffectual, while here there is none whatever, and that in such a case the right to sue should be implied as a matter of necessity. We do not grant that such a difference exists between the two cases. If the administrator had still been in possession of the assets, no suit could have been maintained against him for the taxes, although the estate could not have been seized for them, as it consisted of choses in action. It is true, they might have been reached, in the manner provided by statute, by the summary mode of attachment by notice served upon those owing them, if the debtors could have been found, and a judgment obtained in the county court, but this would have been because the legislature had expressly provided such a mode of collection. Granting, however, that there is a difference between the two cases, and admitting for the sake of further discussion that the one cited is not altogether decisive of this one, yet it is certainly true that it is not any more an inherent power of a court to collect taxes than it is to levy them. It has been held by this court that a tax is not a debt within the legal meaning of the term, and therefore assumpsit cannot be maintained upon it, as is done in some states where it is regarded as an indebtedness. It comes upon the citizen in invitum, and its payment rests upon the duty he owes to the state in return for the protection extended by it to him. The...