JUDGE HOLT
delivered the opinion oe the court.
Robert B. Bowler, of Hamilton county, Ohio, died intestate on July 4, 1864, being then the owner of a large estate in both that and this State. Administration was granted in the former State on July 15, 1864. There lived also his widow and children. The estate in Kentucky, aside from railroad stock, upon which taxes were paid by the railroad company direct into the State Treasury, consisted altogether of notes and bonds. It was deemed expedient to have administration in this State also; and the appellant, Eli C. Baldwin, a friend of the family, was induced to remove from Ohio to Kentucky and undertake the trust. He qualified as the Kentucky administrator in the Kenton county court on February 13, 1865.
Appraisers of the estate were then appointed, who appraised the evidences of debt, exhibited to them by Baldwin, at nearly six hundred thousand dollars. He [508]*508also signed the appraisement, thus making it his inventory. He continued to act as such representative until January 21, -1882.. During this period of nearly seventeen years, the estate in his hands of never less than $400,000, and amounting during some years to from one to two millions, was never assessed by him, and, so far as this record shows, was never assessed elsewhere. Upon the day last named he made a final settlement of his accounts in the Kenton county court, exhibiting the balance due the Ohio distributees; they, under the order of court, received their distributive portions; the court adjudged the estate as fully administered; and, upon the confirmation of the settlement, ordered that “ E. C. Baldwin be discharged from any further consideration of said trust.” After all this had occurred, and on July 7, 1882, the Auditor’s agent filed, in the Kenton county court, an information against Baldwin as the administrator of Bowler, in which it was stated that from 1865 to 1882, inclusive, the latter had in his hands each year a certain amount (naming it and the year) of assets, which were subject to taxation under the revenue'' laws of this State. He was thereupon cited by summons to appear and list it. He filed a response, setting up his settlement; the distribution and his discharge from the trust; also that there had never been in his hands at any time a surplus of assets over the indebtedness, or any property subject to taxation; that Bowler died domiciled in Ohio, where administration was first granted, and that the respondent had never been called upon by the assessor or any other officer to list any property in his hands belonging to the decedent. A reply was filed, and upon hearing [509]*509the county judge, on September 2, 1882, dismissed the •information. Shortly thereafter, the agent of the Auditor filed a second information, identical with the first —totidem verbis — and the appellant, by his response, relied upon the same defenses as before, with the additional one, that the former dismissal upon the merits was a bar to the proceeding, and that the matter _ was res judicata. A new county judge had now qualified, and upon the hearing he, on April 18, 1883, ordered “that Eli C. Baldwin, as administrator of Robert B. Bowler, be required to list for taxation the property held* by him as administrator aforesaid, for the years mentioned in the information, and that defendant pay the costs of this action.” In response the appellant tendered his affidavit, stating, in substance, that the property of the decedent in his hands during each of the years named in the information consisted entirely of notes, bonds and stocks; and that during the entire period the estate was indebted in a sum greater than the value of the entire personalty, excepting the railroad stock, upon which taxes were paid directly to the State treasurer; and that as, under the revenue law then in force, only the surplus left after deducting the indebtedness was taxable in such a case, he was not subject to assessment. Objection was made to its being filed ; witnesses were ordered to be summoned, and the court was proceeding to hear the matter, when further action was stayed by the institution of this suit enjoining the county judge and the Auditor’s agent from proceeding further as to the proposed assessment. The action is based upon the grounds which were set up as defenses to the information; and the statements of the [510]*510petition must be regarded by ns as true, as the injunction was dissolved, upon motion, before answer, which was equivalent to a demurrer to the petition.
The question arises in limine whether the remedy by injunction will lie. In many of the States equity will not enjoin- even the collection of an illegal tax; and much less an assessment, because the assessor is regarded as a quasi judicial officer. It is said that public policy, which will not brook delay in the public business, requires this rule.
It seems to us, however, that the evils flowing from its enforcement overbalance this consideration. It is an object of equity to foresee and prevent wrong. One of its principal offices is to avoid multiplicity of suits- and circuity of action. By this rule the tax-payer is left to sue the collecting officer. This is unjust to both. It produces expensive litigation between two innocent parties, one of them being involved in it by reason of an honest effort in official duty. The courts of Illinois, Indiana, Pennsylvania, and some other States, including this one, have discarded this rule, and hold that a court of equity may enjoin the collection of an illegal tax. (Lou. & Nashville R. Co. v. Warren Co. Court, 5 Bush, 243; Gates v. Barrett, 79 Ky. Rep., 295.)
This being so, why is it not equally proper, in view of the aims of equity, to extend the rule to a proposed illegal assessment, final in its character, as this one would be % It is illogical to say that the chancellor can control the consequences, but not the act productive of them; or that he can not arrest the act, but may lay his hand upon those who attempt to carry it to its necessary results. An illegal assessment produces in[511]*511jury by creating a prima facie claim. Each leads to the same result; and surely one is not required to wait for tlie infliction of an injury before asking equitable relief. Of course this rule does not apply to an ordinary assessment, not final in its character, where the party may apply to the board of supervisors or the county judge for relief.
The next inquiry is, whether the appellant, upon the face of his petition, is entitled to it. He bases his claim to it upon three grounds. First. His settlement of the trust, and his discharge from it before the institution of any proceedings against him. Second. The assets being mere indebtedness, had no actual situs, and must be treated as constructively located with the owners, and at their domicile ; and the Bowler heirs being nonresidents, the estate was not subject to taxation in Kentucky. Third. The judgment upon the first information is a bar to all further proceedings.
The general rule is, that all property is taxable. If exempt, it is an exception.
Section 11, article 5, chapter 92, of the General Statutes, provides: “All taxable estate shall be valued as of the 10th day of January in the year listed, and the person owning or possessing the same on that day shall list it with the assessor, and remain bound for the tax, notwithstanding Tie may have sold or parted with the same.”
The assessment is made as of a certain day in each year.
Free access — add to your briefcase to read the full text and ask questions with AI
JUDGE HOLT
delivered the opinion oe the court.
Robert B. Bowler, of Hamilton county, Ohio, died intestate on July 4, 1864, being then the owner of a large estate in both that and this State. Administration was granted in the former State on July 15, 1864. There lived also his widow and children. The estate in Kentucky, aside from railroad stock, upon which taxes were paid by the railroad company direct into the State Treasury, consisted altogether of notes and bonds. It was deemed expedient to have administration in this State also; and the appellant, Eli C. Baldwin, a friend of the family, was induced to remove from Ohio to Kentucky and undertake the trust. He qualified as the Kentucky administrator in the Kenton county court on February 13, 1865.
Appraisers of the estate were then appointed, who appraised the evidences of debt, exhibited to them by Baldwin, at nearly six hundred thousand dollars. He [508]*508also signed the appraisement, thus making it his inventory. He continued to act as such representative until January 21, -1882.. During this period of nearly seventeen years, the estate in his hands of never less than $400,000, and amounting during some years to from one to two millions, was never assessed by him, and, so far as this record shows, was never assessed elsewhere. Upon the day last named he made a final settlement of his accounts in the Kenton county court, exhibiting the balance due the Ohio distributees; they, under the order of court, received their distributive portions; the court adjudged the estate as fully administered; and, upon the confirmation of the settlement, ordered that “ E. C. Baldwin be discharged from any further consideration of said trust.” After all this had occurred, and on July 7, 1882, the Auditor’s agent filed, in the Kenton county court, an information against Baldwin as the administrator of Bowler, in which it was stated that from 1865 to 1882, inclusive, the latter had in his hands each year a certain amount (naming it and the year) of assets, which were subject to taxation under the revenue'' laws of this State. He was thereupon cited by summons to appear and list it. He filed a response, setting up his settlement; the distribution and his discharge from the trust; also that there had never been in his hands at any time a surplus of assets over the indebtedness, or any property subject to taxation; that Bowler died domiciled in Ohio, where administration was first granted, and that the respondent had never been called upon by the assessor or any other officer to list any property in his hands belonging to the decedent. A reply was filed, and upon hearing [509]*509the county judge, on September 2, 1882, dismissed the •information. Shortly thereafter, the agent of the Auditor filed a second information, identical with the first —totidem verbis — and the appellant, by his response, relied upon the same defenses as before, with the additional one, that the former dismissal upon the merits was a bar to the proceeding, and that the matter _ was res judicata. A new county judge had now qualified, and upon the hearing he, on April 18, 1883, ordered “that Eli C. Baldwin, as administrator of Robert B. Bowler, be required to list for taxation the property held* by him as administrator aforesaid, for the years mentioned in the information, and that defendant pay the costs of this action.” In response the appellant tendered his affidavit, stating, in substance, that the property of the decedent in his hands during each of the years named in the information consisted entirely of notes, bonds and stocks; and that during the entire period the estate was indebted in a sum greater than the value of the entire personalty, excepting the railroad stock, upon which taxes were paid directly to the State treasurer; and that as, under the revenue law then in force, only the surplus left after deducting the indebtedness was taxable in such a case, he was not subject to assessment. Objection was made to its being filed ; witnesses were ordered to be summoned, and the court was proceeding to hear the matter, when further action was stayed by the institution of this suit enjoining the county judge and the Auditor’s agent from proceeding further as to the proposed assessment. The action is based upon the grounds which were set up as defenses to the information; and the statements of the [510]*510petition must be regarded by ns as true, as the injunction was dissolved, upon motion, before answer, which was equivalent to a demurrer to the petition.
The question arises in limine whether the remedy by injunction will lie. In many of the States equity will not enjoin- even the collection of an illegal tax; and much less an assessment, because the assessor is regarded as a quasi judicial officer. It is said that public policy, which will not brook delay in the public business, requires this rule.
It seems to us, however, that the evils flowing from its enforcement overbalance this consideration. It is an object of equity to foresee and prevent wrong. One of its principal offices is to avoid multiplicity of suits- and circuity of action. By this rule the tax-payer is left to sue the collecting officer. This is unjust to both. It produces expensive litigation between two innocent parties, one of them being involved in it by reason of an honest effort in official duty. The courts of Illinois, Indiana, Pennsylvania, and some other States, including this one, have discarded this rule, and hold that a court of equity may enjoin the collection of an illegal tax. (Lou. & Nashville R. Co. v. Warren Co. Court, 5 Bush, 243; Gates v. Barrett, 79 Ky. Rep., 295.)
This being so, why is it not equally proper, in view of the aims of equity, to extend the rule to a proposed illegal assessment, final in its character, as this one would be % It is illogical to say that the chancellor can control the consequences, but not the act productive of them; or that he can not arrest the act, but may lay his hand upon those who attempt to carry it to its necessary results. An illegal assessment produces in[511]*511jury by creating a prima facie claim. Each leads to the same result; and surely one is not required to wait for tlie infliction of an injury before asking equitable relief. Of course this rule does not apply to an ordinary assessment, not final in its character, where the party may apply to the board of supervisors or the county judge for relief.
The next inquiry is, whether the appellant, upon the face of his petition, is entitled to it. He bases his claim to it upon three grounds. First. His settlement of the trust, and his discharge from it before the institution of any proceedings against him. Second. The assets being mere indebtedness, had no actual situs, and must be treated as constructively located with the owners, and at their domicile ; and the Bowler heirs being nonresidents, the estate was not subject to taxation in Kentucky. Third. The judgment upon the first information is a bar to all further proceedings.
The general rule is, that all property is taxable. If exempt, it is an exception.
Section 11, article 5, chapter 92, of the General Statutes, provides: “All taxable estate shall be valued as of the 10th day of January in the year listed, and the person owning or possessing the same on that day shall list it with the assessor, and remain bound for the tax, notwithstanding Tie may have sold or parted with the same.”
The assessment is made as of a certain day in each year. The liability is fixed as of that day, and the owner or possessor of the property upon that day is bound for the tax, although he may subsequently part with it. While the law contemplates that the owner [512]*512will be called upon by the assessing officer for his list, and makes it the duty of the latter to do so, yet it equally contemplates that all property liable to taxation shall be assessed. ^
Section 26, article 5, chapter 92, of the General Stat utes, provides : “ Any person who has failed to' give in his list of taxable property because he was not called upon by the assessor may, after the assessor has returned his tax book, list the same with the county court clerk at any time before the first day of October, who, on taking the same, shall be governed by the law regulating the duty of the assessor.”
It is manifest from these statutory provisions that it was not intended that property should escape taxation by the government which protects it, either because the assessor fails to call upon the owner or possessor for his list, or because the latter parts with it before he is proceeded against, but after the time when the liability becomes fixed. It is true that debts have no place independent of the domicile of the owner. While specific articles of personal property permanently located in this State, and belonging to non-residents, may be listed even to the possessor, yet evidences of indebtedness have no actual situs here, and must be treated as located with the non-resident owner; but that case is not this one. The word “owner” in the statute refers to the person in whom the title is vested, either, absolute or qualified. Here the estate was taken in charge by the Kentucky administrator; the legal title was in him; the estate followed him, and was annexed to his person, thereby having an actual situs in this State, by the law of which it was protected. Moreover, it was [513]*513under the charge of, and had to be distributed through, a court of this State. These facts clearly show that the second ground of complaint is untenable.
It is earnestly urged, however, that the action of a county judge in assessing for taxation is judicial, and not ministerial; -and that the dismissal of the first information was a bar to any further proceeding. If this be true, then this suit can not be maintained. The county court has the power to make an assessment. If it acts judicially in so doing, then it may be said that it had jurisdiction to hear the second information; and we, therefore, have a case where one court is asked tp enjoin the action of another as to a matter over which it has jurisdiction. Relief from improper judicial action should be sought through the channel of an appeal or certiorari, or writ of prohibition.
The remedy now sought seems to concede that the county judge was acting as a ministerial officer. If so, then his action upon the first information is not a bar to the second one. The inquiry arises, is an assessment by him an act of a judicial nature ?
The assessor must necessarily use some judgment in making assessments, as is the case, to a greater or less degree, in all ministerial action.' It is well settled in this State, however, that the act of an assessor is a mere ministerial one; and yet what more does the county court do in making an assessment than the assessor %
By our State Constitution, the powers of government are legislative, executive and judicial, making three distinct departments; and neither can exercise any power belonging to the other, save in the instances [514]*514permitted by that instrument. It classes the county court as a part of the judiciary; but this power has repeatedly and for a long time recognized the right of the county court to perform ministerial duties. This view has also received legislative sanction; and may now, by reason of uniform practical construction, dating from the formation of our State government, be regarded as beyond question.
Numerous statutes may be found conferring the power to perform such non-judicial duties, which were enacted prior to the adoption of our present Constitution. Its framers undoubtedly knew this fact; bat yet made no change, thereby virtually recognizing their validity. The power to impose taxes can not be conferred upon a tribunal which has judicial powers alone; neither is their apportionment or assessment a judicial power. This is well settled in this State. Why, then, should the action of a county court, which may perform both judicial and ministerial duties, be regarded as judicial, when, for the purpose of compelling all property to bear its proportionate part of the public burden, and to catch delinquents, it is required merely to perform what the assessor should have done % Its powers being of a mixed character, it is sometimes difficult- to tell upon which side of the often shadowy line its acts should be ranged. Its action may, under one state of fact and law, be judicial, while under another it may be ministerial; but where, as in this instance, its office is merely to supply the omission of a ministerial officer, we fail to see any good .reason why its action should be regarded as judicial. These views are supported by the case of [515]*515Pennington v. Woolfolk, &c., 79 Ky. Rep., 13; and we conclude that the proceedings upon tin first information were not a bar to the second one.
We do not construe the order of the county court made on April 18, 1883, as determining the liability to taxation of the assets which had come to the appellant’s hands as administrator; or that he should list them without any deduction for indebtedness, if such existed; but only that he was required to make a list. The county judge appears to have so regarded it, because he was proceeding to hear the matter when further proceedings were enjoined. The record does not show that he rejected the affidavit of the appellant; but only that it was tendered and objected to by the representative of the State. Necessarily the assessing officer, in acting under what is known as the equalization law, and in arriving at a person’s “surplus” over his indebtedness, must often accept the tax-payer’s statement as conclusive of it. Often he can not otherwise arrive at it; but he is not bound to do so. It would be unreasonable to so suppose in a case where he had reasonable ground to believe that the party was making a false assessment. ■ The law intended that he should avail himself of all the means within his power to get at the facts of the case ; and this the county court was endeavoring to do when it was prevented from proceeding by this action.
Inasmuch as the petition in this case avers that, aside from the railroad stock, the .estate of Bowler during the entire period covered by the information was indebted in an amount larger than its assets, we should, if we understood the .order of the county court as perempto[516]*516rily ordering the appellant to list the assets that came to his hands, without regard to any indebtedness, reverse the judgment below, with direction to the chancellor to order the county court to hear the question, both as to assets and indebtedness; but we think the proceedings show that it was merely proceeding to do so when enjoined; and the judgment is, therefore, affirmed.