City of Louisville v. Louisville Railway Co.

81 S.W. 701, 118 Ky. 534, 1904 Ky. LEXIS 74

Opinions

Opinion op the court by

JUDGE HOBSON

Reversing.

These actions were brought by the city of Louisville against the Louisville Railway Company to recover certain taxes. This is the third appeal. See City of Louisville v. Louisville Railway Company, 111 Ky., 1, 23 R., 390, 63 S. W., 14; and City of Louisville v. Louisville Railway Company, 68 S. W., 840, 24 Ky. Law Rep., 538. Nearly all the questions involved have heretofore been settled, and only the following need now be considered; Previous to the adoption of the present Constitution and the statutes made pursuant thereto, the street railway company had an arrangement with the city, by which, in consideration of the franchises granted, it was provided: “That the said Louisville City Railway Company shall, for the fran cbise and privilege herein granted to construct and operate railways over the streets hereinbefore named, pay into the city treasury of the city of Louisville, each and every year, the sum of $25, tax or license, for each and every car run upon their said railways, or such other sum as the general council may fix, not less than $25 and not to exceed $50 for each- car so used by said company, ®o long as said company shall operate said railways, or so long as the same shall be operated by any other company.” The amount to be paid w>as subsequently fixed by ordinance at $50 a car. After the adoption of the present Constitution and the present statutes, an arrangement was made between the street railway company and the city by which it agreed' to pay a license tax of 2 1-2 per centum on the gross earning® of the company in lieu of all other taxes. This! ordinance, after setting out the previous arrangement, reads as follows: “Now, therefore, be it ordained that the said license tax of two and .one-half per centum on the gross earnings of the said company shall be in lieu and instead of the license taxes provided in the said contracts, and that the amount so paid shall be in full discharge of the taxes due to the said city, except that the said company shall pay the same tax upon it® lands as is paid by other owners of lands in the city of Louisville. The provisions of this ordinance shall take effect upon the acceptance of its provisions by the said company, and the license tax to be paid under it shall be estimated upon its gross earnings from and after February 1, 1894.” The railway company paid its license tax of $50 per car until the ordinance above quoted took effect, and after that paid the tax of 2 1-2 per cent, on its gross earnings. The tax year begins on September 1st of the preceding calendar year. The taxes for 1894 are therefore assessed as of September 1, 1898. The city sues in these actions for the ad valorem tax on appellant’s property and franchises levied under the new Constitution and the statutes enacted thereunder. During the time covered by this tax the railway company paid to the city as license taxes at the rate of $50 per, car the following sums:

October 12, 1893 ...............................$1,020 78

November 15, 1893 ........................... 1,070 16

December 15, 1893 ............................. 995 83

January 11, 189-4 ...............1............. 978 54

February 5, 1894 .............................. 954 17

Total ........................... $5,019 48

After the ordinance levying the tax of 2 1-2 per cent, on the gross earnings was enacted, and under it, the railway company.paid to the city the following sums of taxes:

May 31, 1894 ...............................$ 27,892 82

January 29, 1895 ........................... 27,186 89

February 1, 1895 .........0................. 2,232 84

January 29, 1896 ........................... 32,204 30

January 21, 1897 ............................ 30,863 06

Total ........... $120,379 91

The court on final hearing credited the railway company by the sums so paid on the taxes- herein sued for, and of this the city complains. It is insisted that the tax of $50 per car was a bonus agreed to be paid the city for the use of its streets, and that the railway company is not entitled to credit for the money so paid on its ad valorem taxes sued for. In support of this position we are referred to Louisville City Railway Company v. City of Louisville, 4 Bush, 478; City of Newport v. South Covington Street Railway Company, 89 Ky., 29, 11 R., 319, 11 S. W., 954, and Fidelity & Casualty Company v. City of Louisville, 106 Ky., 207, 20 R.j 1785, 50 S. W., 35. The tax of $50 a car was part of the scheme of taxation devised under the old charter of the city. That charter expired with the adoption of the new act for the government of cities of the first class. This act contained all the law on the subject, and was a substitute for the old charter and all of its provisions. After it took effect, taxes could only be levied under it. They could not be levied in part under it and in part under the .old charter. The levies authorized by the new act were the only levies that could be lawfully made, or which, the taxpayer could be required to pay. The new system of taxation which it devised was substituted in its entirety for the ■old system of taxation in vogue under the old charter. While by section 181 of the Constitution a license or occupation tax may be authorized, and this power is conferred in sections 3011, 3012, Ky. St., 1903, governing cities of the first class, no occupation or license tax was imposed by the general council under the. power so conferred, and therefore, in the absence of such action, the railway company ,was not liable for a license, tax during the time covered' by the taxes sued for. It was not required to pay the $50 per car, for this was part of a scheme of taxation that had passed away, and it was bound to pay its ad valorem taxes on its property and franchises' as other property holders. The ordinance allowing it to pay a tax of 2 1-2 per cent, on its gross income in lieu of its ad valorem and other taxes was .void. Still, the money paid under the void ordinance, having gone into the city treasury, must be credited on the ad valorem taxes which were in fact due. The parties made a mutual mistake. It is apparent they were both in good faith. The money was paid by the railway company as taxes, and, the court having held that it must pay an ad valorem tax instead of a license tax, or a tax on gross earnings, tbe money so paid must be credited on the taxes which were legally assessed. It is true that the |50 a car license tax was for the use of the streets of the city, but this use of the streets of the city is» one of the franchises' of the company, which is taxed in its ad valorem assessment, and without it the other franchises would be of little value. It is therefore true that the same property is taxed under the ad valorem assessment of appellee’s property and franchises that was sought to be taxed in the ordinance fixing the license tax of $50 a car, and it must be presumed that the one was intended as a substitute for the other. If it was desired to impose in addition a license or occupation tax on appellee,, this could be done by the action of the council under sections 3011, 3012, Ky. St., 1903. This was not taken. There can not be an ad valorem tax under the present system and at the same time a license tax under the old system. The tax of $50 a car was levied under an ordinance enacted under the old charter, which is no longer in force, and therefore money paid under this ordinance after it had ceased to exist must be treated as paid on the taxes which the defendant in fact owned. We therefore conclude that the circuit court properly allowed the credits referred to.

The tax bill of 1894, as originally made out, was erroneous, and was withdrawn. A new bill was made out on June 3, 1897. But in making out this tax bill so far as the tax on the franchise went, the value of the franchise was not apportioned between the city and the county, although the line of railway lies partly in the city and partly in the county. The board of assessment and valuation in fact made the apportionment, but in certifying their action to the county clerk the auditor certified the total amount of the assessment of the franchise'as taxable by the city in stead' of the amount which had been in fact apportioned to it. In the years 1895 and 1896 a different mistake was made in making out the tax bills. After ascertaining the total valuation of the property of the railway company, they deducted from it the county assessment of its tangible property, and not the city assessment of the same property, although it was much higher than the county assessment. Thus the railway company was assessed twice for the same property, or the sum of the assessments against it was greater than the total amount at which its entire property was assessed.

In Owensboro Water-Works v. Owensboro, 74 S. W., 685, 24 Ky. Law Rep., 2532, we held that the taxpayer was in such case entitled to have his franchise tax reduced to the amount which it should have been if the proper deduction had been made. .The circuit court followed this decision, and reduced the tax bills as there indicated. He also reduced the tax bill for 1894 to the true amount, which was in fact apportioned to the city by the board of valuation and assessment, but he allowed no interest on these taxes, except from the date of the judgment. In doing this he departed from the rule laid down in the Owensboro case, for there the taxpayer was made to pay interest, notwithstanding the correction. 75 S. W., 268, 25 Ky. Law Rep., 434. His ruling appears to be based on the line of authorities holding in cases of liens for street improvements that no interest runs against the taxpayer until a correct apportionment is made. These cases are not in point, for there the taxpayer can not know what he is to pay until the cost of the improvement is apportioned to the property liable therefor. But here the tax payer could have learned exactly what its taxes were from the records made by the board of valuation and assessment. It impeache's the record in the county clerk’s office, and shows it was incorrect, placing its taxes too high. But in showing this it shows precisely what its taxes ought to he, and this it could have done when its taxes were due, and could then have tendered the money to the city, and stopped interest. We therefore conclude that interest should have been allowed on these taxes for the years 1894-5-6, from the time the second tax receipts (or those sued on) were payable.

We see no other error in the judgment, and with this correction it is approved.

■Judgment reversed., and cause remanded for a judgment as herein indicated.