Ludlow v. City of Ludlow

• Decision Date: 28 February 1913
• Citation: 152 Ky. 545,153 S.W. 783
• Parties: LUDLOW et al. v. CITY OF LUDLOW. [d]
• Court: Kentucky Court of Appeals

153 S.W. 783

152 Ky. 545

LUDLOW et al. v. CITY OF LUDLOW. ^[d]

Court of Appeals of Kentucky.

February 28, 1913

Appeal from Circuit Court, Kenton County, Common Pleas and Equity Division.

Action by the City of Ludlow against William S. Ludlow and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Myers &amp Howard, of Covington, for appellants.

Jackson & Woodward, of Cincinnati, Ohio, for appellee.

CLAY C.

The city of Ludlow, a city of the fourth class, brought this action in December, 1899, against W. S. Ludlow and A. S Ludlow to enforce its tax lien on certain parcels of real estate owned by them, and upon which the taxes had not been paid for a number of years. During the progress of the action, the taxes for subsequent years accrued on the property and were not paid, and these claims were presented by amended petition. The city also filed an amended petition describing with greater accuracy the parcels of real estate that had been assessed, and upon which the taxes had not been paid. On final hearing, the chancellor adjudged the city a lien on the property involved for taxes accruing within five years from the time of the filing of the action, and directed that the property be sold. From that judgment, the defendants appeal.

1. The first contention of defendants is that the city had no right to institute an action in equity to collect the taxes until the city collector had exhausted the powers of a sheriff which were conferred on him by the charter of cities of the fourth class. Section 3544, Kentucky Statutes, relating to cities of the fourth class, provides: "The tax receipts, except as herein provided, shall be turned over to the collector or treasurer, as may be provided for by ordinance, who shall receipt to the clerk for the same, and shall, within ten days after the receipt of same, and before the first day of July, and ten days before September first, in each year, give notice, by printed notice posted for ten days in ten public places in said city, or by such notice for ten days in a newspaper, to be designated by the council, that the taxes for the current year are in his hands for collection and are due, and that in default of payment on or before November first, the penalty prescribed by ordinances shall be attached. Said receipts shall be indorsed by the collector or treasurer, and all receipts remaining in his hands on the first day of November in each year, unpaid, shall be indorsed by him 'delinquent,' and returned to the city clerk, and such receipts found in such tax list returned by said clerk to be unpaid shall be credited to the collector or treasurer on his receipt. The city clerk shall thereupon proceed to attach the penalty prescribed by ordinance to each tax receipt, not exceeding twenty-five per centum penalty and interest as may be provided by ordinance, and then deliver same to the collector, taking his receipt therefor. Said collector shall then proceed to collect same, and, in the collection of same, use the same powers and proceed in the same way as provided by law for the sheriff in the collection of the state revenue: Provided, that notice of garnishment shall be returnable to the police court, and said court shall have the same jurisdiction and powers that are given to county courts with reference to state revenue. At sales of property for city taxes the city shall be a competent purchaser, and the mayor shall have the right to make such purchasers for the city: And provided, further, that the board of council may order suit to be instituted for the collection and enforcement of any delinquent tax bill and lien therefor. All suits for taxes on realty shall be brought in the circuit court of the county and be enforced as other liens are enforced, and all suits for taxes on personalty may be brought in the police court of the respective city, and in all such suits the production of the tax bill shall be prima facie evidence of the correctness thereof, and that all proper steps were taken to fix the lien therefor."

Section 3545 provides for the appointment of a collector, the execution of a bond by him for the faithful performance of his duties, and makes it his duty to collect all dues, owing to the town, placed in his hands.

Section 3546 provides as follows: "All tax bills uncollected, in whole or in part, on the first Monday of November of each year, against any person (not under disability of infancy, coverture or unsound mind) owning property in his own right, together with interest at six per cent. per annum, and shall be a debt from such person to said city arising as by contract, and may be enforced as such by all remedies given for the recovery of debts in any court of the commonwealth otherwise competent for that purpose; and those bills assessed against an administrator, executor or trustee shall be a charge against the whole succession or trust estate, and may be enforced accordingly, in addition to the remedies herein given."

Section 4149, relating to the collection of state revenue, after providing for distraint by the sheriff, contains the following provision: "If a sufficient amount of personalty be not found, then he will levy on a sufficient quantity of delinquent's land for that purpose. But if no land be found belonging to the delinquent, the sheriff shall levy on any real estate owned by the delinquent at the time of the assessment," etc.

It is argued that it was the duty of the collector first to distrain the personal property; and, if there was no personal property, it was his duty then to levy on the defendants' land, or, if they had no land, to levy on any land owned by them at the time of the assessment, and that such action on the part of the collector is a condition precedent to the right to enforce the collection of taxes by an action in equity. In support of this position, we are cited to the case of City of Covington v. People's Building Association, 2 S. W. 322. That case, however, was expressly overruled in the case of Greer v. City of Covington, 83 Ky. 410, 2 S.W. 323. In the latter case the court held that the Legislature might authorize the city to collect taxes by suit; and, where this remedy is given, it will not be held to exclude a summary mode of collection already provided by statute, nor will it be limited to cases in which the summary mode may have proved ineffectual, unless the statute so provides. Under section 3544, Kentucky Statutes, supra, the board of council may order suit to be brought for the collection of any delinquent tax bill, and for the enforcement of the lien therefor. All suits for taxes on realty shall be brought in the circuit court of the county, and be enforced as other liens are enforced; and all suits for taxes on personalty may be brought...