Muir's Adm'rs v. City of Bardstown

• Decision Date: 15 June 1905
• Citation: 87 S.W. 1096,120 Ky. 739
• Parties: MUIR'S ADM'RS v. CITY OF BARDSTOWN.
• Court: Kentucky Court of Appeals

87 S.W. 1096

120 Ky. 739

MUIR'S ADM'RS v. CITY OF BARDSTOWN.

Court of Appeals of Kentucky.

June 15, 1905

Appeal from Circuit Court, Nelson County.

"To be officially reported."

Suit by James Muir's administrators to enjoin the city council of the city of Bardstown from passing on the question of plaintiffs' liability for taxes on omitted property. From a decree in favor of the city, plaintiffs appeal. Affirmed.

N. W Halstead, Jno. D. Wickliffe, and Greene & Van Winkle, for appellants.

R. C Cherry, for appellee.

O'REAR J.

Dr James Muir, before his death, in February, 1900, had been for many years a citizen and resident of Bardstown, which is a city of the fifth class. He had omitted to list cash, notes, and securities of the value of $14,000 for each of the years 1895, 1896, 1897, 1898, 1899, and 1900, inclusive. The taxpayer was required to list his property for taxation with the town assessor as of the 15th day of September of the year previous to the one for which the tax was collectible. For example, the property owned on 15th of September, 1899, being listed as of that date for city taxes for the year 1900. There was no provision of law in Bardstown for listing omitted properties prior to August, 1900. The council then passed an ordinance providing that upon affidavit filed before the city clerk by the city marshal, who was the collector for the city, the clerk was to issue a summons or notice to the property holder, citing him to appear five days thereafter before the city council and show cause why his omitted property (named in the notice) should not be listed for taxation for such years for which it was omitted. The ordinance further provided that upon the filing of such affidavit, and after the notice had been given as stated, the city council should determine from the facts whether the property was liable to taxation, and fix its value. This being done, the tax levy made previously for the year in question should apply to the omitted property. The result was certified to the city marshal, who was then to proceed to collect the tax, as other taxes. This suit was brought by Dr. Muir's administrators, seeking to enjoin the city council from passing upon the question of plaintiff's liability for the tax; it having proceeded, under the ordinance alluded to, to assess Dr. Muir's omitted property retrospectively for the years named above. The ordinance under which the appellee was proceeding was attacked on constitutional grounds, and for other reasons, which will be noticed in order.

It is claimed that the city council had not the power to pass the ordinance in question, because it is not to be found--so it is argued--in the powers expressly granted to cities of the fifth class by the Legislature. By subsection 3 of section 3637, Ky. St. 1903, cities of the fifth class are empowered to levy and collect annually an ad valorem tax, not exceeding 75 cents on the $100 of the assessed value of all real and personal property within such city. By section 3644 the council is given the power, and it is made their duty, "to provide by ordinance a system for the assessment, levy and collection of all city taxes, not inconsistent with the provisions of this chapter [chapter 89, tit. "Municipal Corporations"], which system shall conform, as nearly as the circumstances of the case may permit, to the provisions of the laws of this state in reference to the assessment, levy and collection of state and county taxes, except as to the times for such assessment, levy and collection, and except as to the officers by whom such duties are to be performed." The ordinance in this case conforms in principle and language to section 4241, Ky. St. 1903, regulating proceedings for listing omitted property for county and state taxation. The points of divergence between the proceedings are, in the case of county and state taxes, the tribunal to list is the county court, while as to city taxes it is the municipal council. In the county court proceeding an appeal is provided from the judgment deciding that the property is liable to taxation. None is provided in the ordinance. Sections 3637, 3644, Ky. St. 1903, above alluded to, contain an express grant of power to the city to levy and collect ad valorem taxes, within the maximum rate named, and to provide a system of taxation and assessment. No system of assessment is complete or just that fails to provide for listing omitted property, for, when some property liable to taxation is omitted, and if permitted to escape its share of the burden of government, other property that is assessed must bear more than its just proportion. The city council, in enacting ordinances, exercises a legislative function delegated to it by the state Legislature. It can enact laws to be in force within the municipality, and within the powers delegated, or those necessarily implied, as binding in every respect as if done by the General Assembly of the State. The ordinance in question, when properly passed by the city council, and found to be within the delegated power granted to the council, is to be tested as an act of the Legislature.

This brings us to consider the next objection to the ordinance which is that it is "retroactive and an ex post facto law." To the extent of the penalty, it is void. The circuit court so held, and did not enforce the penalty in this case. But as the remainder of the ordinance, unless it is also an ex post facto law, can be enforced without the rejected clause, it is not void on that account. The liability to pay taxes is statutory, always, although the moral obligation upon every citizen to bear his share of the burden of government exists inherently. It is from that fact that the courts uphold tax levies, even though it be shown that no direct benefit flows to the individual taxpayer. The comprehensive scheme of government, viewed as a social pact, while it may not in fact give equal benefits to every taxpayer, is, on the whole, deemed to do so, and, it is believed, does so, as far as is practicable. The citizen who is protected in the enjoyment of life, peace, and pursuit of happiness by the laws and laws' machinery must bear a fair proportion of that which he, in common with all others, enjoys. He has received the consideration, and ought to pay for it. When he fails to pay he is, in a sense, morally derelict. Statutes enacted to collect the public dues, if deficient, cannot be deemed to have exhausted the power lodged by the people in their government to do all that is necessary to effectuate the end for which it was established. Hence it occasionally becomes necessary, for some cause, to cure what has been attempted under the taxing laws, but which has failed of execution because of former defects. From the very nature of the case, such proceedings, whether by a new statute or under an old one, are retrospective. They are intended to be. Judge Cooley, in his work on Taxation, at page 291...