First National Bank v. Hopkinsville

108 S.W. 311, 128 Ky. 383, 1908 Ky. LEXIS 61

• Court: Court of Appeals of Kentucky
• Decided: March 13, 1908
• Status: Published

Opinion

Opinion of the Court by

Wm. Rogers Clay, Commissioner

Affirming.

Appellant, First National 'Bank of Hopkinsville, Ky., instituted this action against the city of Hopkins-ville to recover taxes claimed to have been illegally collected by appellee. The petition alleged tbat appellant was assessed on its shares of stock for the year 1905 the sum of $£0,087 ; that the tax rate of the city of Hopkinsville for the year 1905 was $1.50 on the $100, thus making the tax imposed on appellant the sum of $901.30, which- sum appellant paid to appellee; that at the time of the assessment appellant was the owner of $50,000 worth of government bonds, in which its capital stock and surplus were invested; that State banks and trust companies were entitled to deduct from the aggregate value of their assets all non-taxable securities which they then owned, and that appellant was entitled to the same right; that no deduction from appellant’s taxes was made on account of said bonds; that appellant paid to the appellee on the United States bonds owned and held by it the sum of $750, for which sum judgment was asked, with interest from the date of payment. The case was transferred to equity. Various demurrers and pleadings were filed, and, upon the final submission of the case, judgment was entered dismissing appellant’s petition.

It is the contention of appellee that appellant’s action is in effect one to correct an assessment, ¿nd that, having failed to go before the proper authorities for the purpose of having the assessment corrected, the action of the authorities is final and conclusive, and appellant is now without remedy. On .the other hand, it is the contention of appellant that, while the action grows out of or is based upon an erroneous assessment, the purpose is not to correct the assessment. It is simply an action to recover money had and received, which was illegally collected from appellant. We are unable to see the force of appellant’s argument. The only method by which a court could determine whether or not the money collected by appellee was illegally collected would be to review the assessment, and pass upon the question of whether or not it was properly made. We can not assume that no deduction was made on account of United States bonds owned by appellant. The only way by which we could ascertain this fact would be to examine the assessment, and determine whether or not a proper valuation was fixed upon appellant’s shares of stock. The effect of this would be to substitute the judgment of the court for that of the assessing officers; in other words, to make a new assessment. This is not a case where the assessment is void. Nor is it a case where á party is assessed upon property which he does not own. It is simply a case where the claim.is made that the assessment is too high because appellant was not given credit in the assessment feed .for the amount of its government bonds. In order to hold that appellant is entitled to recover, we would have to say that the assessment was too high. This we have no power to do after the assessing officers have passed upon -the question, and no complaint has been made to them within the time prescribed by law. In the case of Coulter, Auditor, v. Louisville Bridge Co., 114 Ky. 42, 70 S. W. 29, 24 Ky. Law Rep. 809, the rule is thus stated: “We are of opinion, and hold, that when the proper assessing officers, within the time and substantially in the manner prescribed by statute, have acted in considering and fixing the valuation upon property liable to assessment for taxation, and no relief has -been obtained within the time allowed by statute for correcting their action, if erroneous, that action is final. The judgment and action of the assessor, based upon the legal evidence then obtainable and at hand and as fixed by statute, when recorded in the proper tax lists, in the very nature of things should be conclusive upon the State as well as against the taxpayer. ’ ’ In the case of Commonwealth, etc., v. American Tobacco Co., 96 S. W. 466, 29 Ky. Law Rep. 745, this court said: “It has often been held that the fact that assessing officers assess property too low is no ground for relief in a proceeding such as this, as the court has no supervisory jurisdiction on assessments which have been examined and approved by the boards provided by law. Muir’s Committee v. Commonwealth, 14 Ky. Law Rep. 478; Commonwealth v. Coffee, 12 Ky. Law Rep. 717. It is only where the question is not one of valuation, but of omission to list at all, that the court may take jurisdiction in a case like this. Butler v. Watkins’ Exrs., 27 S. W. 995, 16 Ky. Law Rep. 305; Coulter v. Bridge. Co., 114 Ky. 42, 70 S. W. 29, 24 Ky. Law Rep. 29; Chicago, etc., R. R. Co. v. Commonwealth, 115 Ky. 278, 72 S. W. 1119; Citizen’s National Bank v. Commonwealth, 118 Ky. 51, 80 S. W. 479, 25 Ky. Law Rep. 2254. Manifestly the same rule applies where the claim is that the assessment is too high!.

Appellant’s property was assessed by the proper officers. The assessment was examined and approved by the boards provided by law. Their action, therefore, is final and conclusive, both upon appellant and appellee. That being the case, the courts have no jurisdiction to supervise and correct the assessment. It will be unnecessary to consider the other grounds of defense.

For the reasons given, the judgment is affirmed.