Lou. & Nash. R. R. v. Commonwealth

JUDGE HOLT delivered the opinion of the court. These cases involve like questions, and will, therefore, be considered together. To this end a brief history of them is necessary. The Warren and Marion county cases are proceedings to compel the appellant, the Louisville and Nashville Railroad Company, to list its property in those counties for the years 1876 and 1877 for county taxation ; while in the Lincoln county cases, it is sought to enforce a triple tax and fine against the appellant for its failure to list its property for those years for such jrarpose. In the Marion county case, the sheriff reported in writing to the county court clerk that the appellant had failed to give in a correct list; while in the other cases, he reported that it had failed to list its property altogether. In the Warren and Marion county cases a summons was thereupon issued against the appellant to show cause, if any it had, why its property should not be listed; and the matter having been heard by the county court, it directed its clerk to list the property, but rendered no judgment for triple tax or any fine. In the Marion county case this judgment was, upon appeal to the circuit court, sustained. In the Warren county case the appeal from the judgment of the county court was, after the introduction of testimony and upon hearing by the circuit court, dismissed. It is urged that this action by the latter court must — 205 — be reversed, because as the case upon appeal had to be tried de nono, the appellant had a right to its decision upon the questions at issue ; and a dismissal oi the appeal left the county court 'judgment in full force. It was, however, a virtual affirmance of it; and although the proceeding was for the most part styled in the name of the Warren county court, yet, as required by the statute, the summons was in the name of the Commonwealth. The summons in each of the Lincoln county cases required the appellant to show cause why a judgment for a triple tax and a fine of not exceeding one hundred dollars should not be rendered against it for failing to list its property. The county court rendered a judgment in each case for the triple tax and a fine of one hundred dollars. The circuit court, upon appeal, reversed these judgments, and remanded the cases to the county court, with directions to it to render judgments requiring the appellant to list its property; and if it, thereupon, failed to do so, then to render judgments for the triple tax and fine. The appellant has appealed to this court from the action of the circuit court, because it so remanded the cases. Upon their return to the county court, it required the appellant to list its property, and it failing to do so, the court then rendered judgments for the triple tax and fine. Upon appeal, they were affirmed by the circuit court, and the appellant has also appealed from these judgments. Since the enactment of the law of March 17, 1876 (volume 1, Acts of 1876, page 78), entitled “An act to make taxation equal and uniform in counties wdiere an — 206 — ad valorem tax is levied by the county court,” there can be no question as to the liability of railroads for county taxes. There is no reason why they should be exempt from this common burthen. They enjoy the protection of the county government, the county thus furnishing the consideration for the taxation. They receive the benefit, and in return the duty of aiding in the support of the local authority is created. If they escape, others must bear more than their just proportion of the burden. The act supra contains no provision, however, for an assessment of the property of a railroad through the county court. Under it, only -the assessor can make it; and no authority exists for these proceedings unless it be found in article 5, chapter 92, of the General Statutes. It provides: “ Sec. 20. If any person fail or refuse to give a list of his taxable property, when legally called upon for that purpose by the assessor or his assistant, or give a false or fraudulent list, or refuse to give the amount he is worth, as required by the first article of this chapter, he shall be fined not exceeding one hundred dollars, and be subjected to the payment of three times the amount of the tax upon the estate by the county court. “Sec. 21. The assessor, at the time he returns his tax-book, shall also return .the names of all delinquents described in the preceding section, and shall, as to fraudulent, delinquents, state in what the falsehood or fraud consists. “ Sec. 22. The county clerk shall issue a summons in the name of the Commonwealth, in which shall be stated the offense, in general terms, against each of — 207 — the delinquents, returnable to the next term of the county court, which shall hear and determine the case,, upon giving to the defendant the right to have a jury to try the facts, if demanded before the trial is begun, which jury shall be composed of housekeepers, and summoned by the sheriff. If the defendant be found guilty, the court shall enter judgment for the line and triple tax and costs. The court shall fix the value of the taxable property upon which to impose the triple tax from their own knowledge, upon the statement of the defendant made upon oath or upon such other evidence as it may be enabled to obtain; and execution shall issue for the fine, triple tax, and costs. The fine and tax shall be certified by the clerk to the Auditor, and accounted for by the sheriff as other public moneys. “ Sec. 23. The county court, before a judgment is rendered against a delinquent, may, if it is satisfied that the defendant was not willfully in default, direct its cleric to take the list of taxable property of such delinquent in the manner prescribed by lato. The lists aforesaid shall forthwith be certified to the sheriff and Auditor, to be charged to the sheriff, and accounted for by him as other revenue. In such cases the county court may excuse the delinquent from the payment of the fine and triple tax, upon payment of the costs of prosecution. “ Sec. 24. It shall be the duty of the county attorney to prosecute under the preceding section 22, and if he does so, shall be allowed thirty per cent, of the fine for his services. “ Sec. 25. When it shall be known to the sheriff that any person has failed to give in a list of his taxable — 208 — property in any year when it shall be liable to taxation, he shall report such person to the county clerk, to Toe dealt with, fined, and taxed as delinquents reported by the assessor. No sheriff or assessor shall be liable to cost in proceedings against delinquents reported by them. “Sec. 26. 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 clerk at any time before the first day of October, who, on taking the same, shall be governed by the law regulating the dirty of the assessor.” ■ It was held in the case of Lincoln County Court v. Louisville and Nashville Railroad Company, 3 Ky. Law Reporter, 436, that the above provisions of the statute were applicable to railroads. The Legislature, by an act approved April 3, 1878, entitled “An act to prescribe the mode of ascertaining the value of the property of railroad companies for taxation and for taxing same,” changed the mode of assessing the property of railroads. It, by its terms, repealed all existing laws as to the assessment and taxation of such property, and at the date of this enactment the taxes now in question had never been assessed. It is, therefore, now said that all mode of procedure as to unassessed taxes of a prior date was gone. It was held otherwise, however, in the case last cited; and it can not reasonably be supposed that the Legislature so intended. It is urged, however, that the provisions of the General Statutes above cited do not authorize a proceeding — 209 — for a compulsory assessment, but only for a penalty for ■a failure to list; and that as the act of 1876 did not provide for it, there is a casus omissus in the law as to ■compelling assessments for the years now in question. This position of the appellant, in connection with the further one that any penalty for its failure to list its property in 1876 and 1877 is now barred by time, would tend largely to defeat equal taxation ; and this can not be presumed to have been the legislative intention, and ■especially so in view of its declaration as embodied in the title of the act of 1876. An assessor can not take a- list after the expiration of the time fixed by the statute for the return of his books. If, therefore, he has for any reason, or in any way omitted it, and, if the county court can, under the .statute, only fine a party and not have his list taken, then, if time has barred the imposition of a fine, he ■■goes free of the common burden, unless he voluntarily chooses to shoulder his part of it. Certainly the Legislature did not intend that the public right should be lost by the neglect of the public agent; or that the performance of his duty to his government by the property ■owner should be left merely to his willingness or caprice. Let us see, however, if they have, in fact, so left it. These proceedings are based upon the information given by the sheriff, and are authorized solely by section 25, supra, of the General Statutes. A distinction should be drawn between this provision and section 20, ibid. The latter provides for the imposition of a triple tax and fine when the person fails or refuses, upon demand of the assessor, to give in his list; or gives a false — 210 — or fraudulent one, or refuses to tell what be is worth. A summons based upon it should, in general terms, describe the offense. It should state, as was held in Evans v. Commonwealth, 13 Bush, 269, whether it be. for giving a false or fraudulent list, or a refusal of the person to state what he is worth, or a failure or refusal upon demand to give in any list whatever; and if these proceedings were founded upon this section, the lower court should have sustained the motion, which was made in each case, to quash the summons. Tire offending under section 25 is, however, confined to a mere failure to list; and this is all, therefore, that a summons issued under it need charge. There is a satisfactory reason for this - difference. In the one case the assessor reports, the character of the failure, thereby enabling the clerk when he issues the summons to specify it. In the other, the sheriff has not the same opportunity as the-assessor to know this, and is, therefore, required to-report merely a failure' to list, and this is all that the-clerk has upon which to act. In such a case, however,, the statute provides that the delinquent is “to be dealt with, fined and taxed as delinquents reported by the assessor.” If reported by him, the delinquent is liable to a judgment for the triple tax and fine; or, if in the opinion of the court the default be not willful, it may “ direct its cleric to take the list of taxable property of such delinquent in the manner prescribed by law.” If for any reason, the triple tax and fine can not be-imposed, although the delinquent may be in willful default, as if, for instance, limitation prevents it, then the action of the court should be the same as if it had found the party in default, but not willfully so. It — 211 — should, in such a case, adjudge the costs against the delinquent, and as the right to coerce an assessment is not affected or barred by lapse of time, and no cause of action arises until the assessment is made, it should direct its clerk to take the list. (L. & N. Railroad Co. v. Commonwealth, 1 Bush, 250; McAlister v. Commonwealth, 6 Bush, 581; Lincoln County Court v. L. & N. Railroad Co., supra.) This was the course pursued in the Warren and Marion county cases. The constitutionality of the law conferring upon our county courts the power to assess delinquents is now, by reason of judicial construction, beyond question. The law of 1819 (M. & B. 1373), as well as the provisions qf the Revised Statutes of 1852 relating to tax delinquents, were in substance similar to those of the General Statutes above cited; and in the case of Pennington v. Woolfolk, &c., 79 Ky. Rep., 13, the court appears to have regarded them as sustaining the construction we have given to the present law. The sheriff in reporting delinquents is not confined to those thus offending during his term of office. Section 25 of the statutes above cited provides that he shall do so when it shall become known to him that any person has so failed “ in any year.” The reason for this is obvious. As the assessor cannot report them after he has returned his assessment, it follows that if the sheriff were confined to those delinquent during his term of office, many would escape taxation altogether. In the Lincoln county cases, however, more than five years had elapsed from the time when the appellant rendered itself liable for the triple tax and fine. — 212 — The General Statutes, section 23, art. 1, chap'. 29, provides : “ Prosecutions by the Commonwealth to recovei a penalty for a violation of any penal statute or law, and an action or procedure at the instance of any person to recover any such penalty, shall be commenced within one year after the right to such penalty accrued, and not after, unless a different time is allowed by the law imposing the penalty.” Section 2, art. 3, ch. 71: “An action upon a liability created by statute, when no other time is fixed by the statute creating the liability ; an action for a penalty or forfeiture, when no time is fixed by the statute or law prescribing the same, * * * shall be commenced within five years next after the cause of action accrued.” We think the statute, so far as it authorizes a judgment for a triple tax and fine against a delinquent, is penal in its nature — the wording of the law so implies. The summons issues in the. name of the Commonwealth; the statute says that “the offense'1'1 must be stated in it in general terms ; if the delinquent is found “guilty,” judgment is to. be rendered against him; the county attorney is required “ to prosecute,” and if he does so, is allowed thirty per cent, of the fine for his services. (Chiles v. Commonwealth, 4 J. J. M., 578 ; Evans v. Same, 13 Bush, 269.) It is unnecessary to decide, however, whether the cases fall within the one or the five-year limitation statute, because, in either case, a recovery of the triple tax and fine is barred by the lapse of time. The judgments in the Marion and Warren county cases are affirmed ; but those in the Lincoln county •cases are reversed, for further proceedings consistent with this opinion.