Whitelaw v. Burke
| Decision Date | 21 April 1942 |
| Citation | 161 S.W.2d 595,290 Ky. 372 |
| Parties | WHITELAW v. BURKE, Tax Com'r, et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division; Eugene Hubbard, Judge.
Declaratory judgment proceeding by Arthur K. Whitelaw, suing on behalf of himself and others similarly situated against Thomas F Burke, Tax Commissioner, and others to have determined the question whether plaintiff's monthly annuity is taxable. From a judgment dismissing his petition, plaintiff appeals.
Affirmed.
Charles G. Middleton, Charles W. Milner, and Crawford, Middleton Milner & Seelbach, all of Louisville, for appellant.
Lawrence S.Grauman, of Louisville, and Smith & Leary and J. J. Leary all of Frankfort, for appellees.
This is a declaratory judgment proceeding, sections 639a--1 to 639a--12, inclusive, of the Civil Code of Practice, instituted by Arthur K. Whitelaw in behalf of himself and others similarly situated to have determined the question of whether his annuity whereby he receives $1,875 monthly is taxable. Mr. Whitelaw was called upon by the Department of Revenue to assess his annuity but he declined to do so. Thereupon the Department instituted a back tax proceeding in the Jefferson county court to compel the assessment of the annuity for the years 1931 to 1939. The ruling in that court was against the Department, and it appealed to the Jefferson circuit court, where the action is now pending. Mr. Whitelaw instituted a declaratory judgment proceeding in the Franklin circuit court, which was dismissed for lack of jurisdiction, and then instituted this proceeding in a division of the Jefferson circuit court other than the one where the back tax action is pending. The back tax proceeding involves the question of whether Mr. Whitelaw's annuity can be subjected to an and valorem tax, and if so, can accepted mortality tables be used in determining its value? The fundamental question in this action is the same. Taking the position that the rights of the parties could be and should be determined finally in the back tax action, the chancellor declined to take jurisdiction in this action and dismissed Mr. Whitelaw's petition. We are asked to take jurisdiction of the case and finally determine the rights of the parties, in so far as the assessment placed by the county tax commissioner upon Mr. Whitelaw's annuity for 1940 is concerned. Obviously, this would be determinative of the fundamental question in the back tax action, notwithstanding our rulings to the effect that each year's taxes constitute a separate cause of action and that a judgment in one year is not res judicata as to another year. Louisville Bridge Co. v. City of Louisville, 65 S.W. 814, 23 Ky.Law Rep. 1655.
Being of the opinion that the trial court properly declined to take jurisdiction of this action, we shall confine our consideration of the case to that question alone. The cases of Jefferson County v. Chilton, 236 Ky. 614, 33 S.W.2d 601, and HuntForbes Construction Company v. City of Ashland, 250 Ky. 41, 61 S.W.2d 873, adequately set forth the position of this Court on determining questions in a declaratory...
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Black v. Utter
... ... Brown, ... 299 Ky. 82, 184 S.W.2d 893, (Alcoholic Beverage Control) as ... well as in the earlier cases of Whitelaw v. Burke, ... 290 Ky. 372, 161 S.W.2d 595; Stearns Coal & Lumber ... Co. [300 Ky. 806] v. Unemployment Compensation ... Comm., 285 Ky. 249, 147 ... ...
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Iroquois Post No. 229, Am. Legion v. City of Louisville
...case it was held that the circuit court properly assumed jurisdiction under the Declaratory Judgment Act. However, in Whitelaw v. Burke, 290 Ky. 372, 161 S.W.2d 595, it was pointed out that a taxpayer cannot resort to the Declaratory Judgment Act to determine a question of exemption from ta......
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Black v. Utter
...rule in Heyser v. Brown, 299 Ky. 82, 184 S.W. 2d 893, (Alcoholic Beverage Control) as well as in the earlier cases of Whitelaw v. Burke, 290 Ky. 372, 161 S.W. 2d 595; Stearns Coal & Lumber v. Unemployment Compensation Comm., 285 Ky. 249, 147 S.W. 382; Moore v. Louisville Hydro Electric Co.,......
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Ratley v. Sheriff's Civil Service Bd. of Sedgwick County, 53199
...seq., for an excellent discussion of this rule. See also Macht v. Hecht Co., 191 Md. 98, 59 A.2d 754 (1948); and Whitelaw v. Burke, Tax Com'r, 290 Ky. 372, 161 S.W.2d 595 (1942). A leading Kansas case on this subject has held in conformity with the general rule. In Pugh v. City of Topeka, 1......