Shuck v. City of Lebanon

53 S.W. 655, 107 Ky. 252, 1899 Ky. LEXIS 165

• Court: Court of Appeals of Kentucky
• Decided: November 17, 1899
• Status: Published

Opinion

JUDGE HOBSON

delivered the opinion oe the court.

Appellee sued appellants to recover municipal taxes for the years 1892, 1893, 1894, 1895 and 1896. They demurred to the petition. Their demurrer was overruled. They then filed an answer pleading a former adjudication, in which municipal taxes sought to be collected "on the same property for the years 1886, 1887, 1888, 1889, 1890 and 1891 had been adjudged not collectible, on the ground that the land was agricultural property, which, though within the city limits, received no benefits from the city government. To this answer the court sustained a demurrer, and gave judgment in favor of the city, enforcing a lien on the property for the taxes sued for.

The demurrer to the answer was properly sustained. The judgment relied on was rendered in regard to taxes' levied before the adoption of the present Constitution of the State, under which all property within the corporate limits of the city may be taxed. (Pence v. City of Frankfort, 19 Ky. L. R., 721, [41 S. W., 1011].) This rule applies to all taxes' levied after the Constitution took effect, whether under the old charter or the general laws passed pursuant to it for the government of cities of the fourth class, as by section 1 of the schedule all laws inconsistent with the Constitution, to this extent, became inoperative upon its adoption.

It is insisted that only appellant Finley Shuck appeared in the action, and the demurrer and answer filed must be treated as filedi only by him. But they purport to be the demurrer and answer of both the defendants, and the orders of the court show that they were filed by both of them. They must, on appeal, be treated as the pleadings of both, the lower court having so treated them. The question is therefore presented whether the petition was good on demurrer against either of the defendants.

The petition shows that the property sought to be taxed belongs to the wife, appellant Hattie Shuck, and was regularly assessed in her name for each of the years sued for. The rate of taxation, and that it was duly and regularly levied by the board of the council of the city, and that the taxes are unpaid, are also alleged; but none of the steps showing the regularity oí the proceedings are set out. Independently of some statutory provision, the rule is*well settled that taxes are not debts; that no person is bound to pay them unless the law in reference to their assessment and levy has been strictly complied with, and, in an action to enforce their collection, each step that is required to be taken to constitute a valid assessment and levy must be specifically pleaded. (City of Louisville v. Louisville Gas Co., 15 Ky. L. R., 177, [22 S. W., 550]; Ormsby v. City of Louisville, 79 Kentucky, 197.) Section 3543 of the Kentucky Statutes provides that, after the supervisors have corrected the assessor’s lists, they shall be returned to the clerk, who shall from them make out the tax bills for ad valorem and head taxes for the year in the stub book to be devised by the council for that purpose, and that he shall sign and turn them over to the city collector, and take his receipt for them. Section 3544 provides that in all suits for the taxes the production of the tax bill shall be prima facie evidence of the correctness thereof, and that all proper steps were taken to fix the lien therefor.

The petition, however, is not so drawn as to bring the case within these provisions. It is not alleged that the tax bills were made out or signed by the clerk, or delivered to the collector, and no tax bills are filed with the petition or shown in the record. It was incumbent on the plaintiff, in order to state a cause of action, either to- comply with the rule in force prior to the adoption of the statute, and set up all the facts necessary to show a right to collect the tax, or to comply with the statute, and set up the facts which it makes prima facie evidence of the right to recover.

It is insisted that the statute only establishes a rule of evidence, and that, as evidence will not take the place of allegations, the same allegations must be made in a petition now that were required under the rule heretofore adopted by this court. This is true as to the essential facts which are necessary to show there was a tax in fact. The assessment of the property, the levy of the taxes, and that they are unpaid, must be alleged. The statute does not contemplate that a petition may be drawn, simply setting out the tax bill, and that it will be sufficient, without any allegation that the property was properly assessed or the taxes duly levied. But it was manifestly intended to do away with the old rule, and to obviate the necessity of setting out all the steps required to be taken by the several officers of the city in the proceeding. Under the old rule it was necessary not only to aver, but to prove on the trial, that all the steps required by law had been regularly taken. The statute expressly dispenses with the proof of all these steps, and it can serve no good purpose to cumber the record with a mass of allegations that need not be proved on the trial, although traversed. The statute must be liberally construed, with a view to promote its purposes: Its evident aim was to• establish in this class of cases the presumption of official regularity generally recognized in judicial proceedings. To hold otherwise would be not only to construe the statute strictly, but to •defeat the plain purpose the Legislature had in view.

If there has been any irregularity, it may be set up by way of defense; but, as the tax bill is prima facie evidence that these steps were taken, they need not be averred in the petition. The petition in this case was not, therefore, defective because it was not shown that the ordinance levying' the tax had been published. The failure of the tax collector to publish that the taxes were in his hands for collection was immaterial, as it is admitted that appellants refused to pay for them.

In pleading the determination of an officer, it is not necessary to state the facts conferring jurisdiction. It is sufficient to state that the determination was duly given or made. (Civil Code, section 122.) Under this rule, it is only necessary, in a petition, to state that the ordinance levying the tax was duly made; but a copy of the ordinance should be filed with it. It is also sufficient to set out that the assessment was. duly made. But, in addition to this, it must also he averred that the assessment was returned to the clerk; that he, from it, made out the tax bills for the year, signed them, and turned them over to the city collector. The tax hill should be pleaded according to its words or substance, as other writings, and, if to he had, should be filed with the petition. A copy of the assessment should also be filed.

Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.