Commonwealth ex rel. Marion County v. Louisville & Nashville Railroad

JUDGE BENNETT delivebed the opinion of the court. Marion county, the appellant, caused a summons to issue from the Marion County Court against the appellee to show cause why its railroad, &c., situated in said county, should not be assessed for tibe years 1867, 1871, 1872, 1873 and 1875, under the acts of 1865, 1867, 1869-70, which authorized the appellant to levy and collect ad valorem, taxes on the taxable property in said county for the benefit of the county. The appellee, by its response, denied that its property in said county was subject to be assessed by the county for said years, or any of them. The county court ordered its clerk to assess the appellee’s road, in said county, at the rate of twenty thousand dollars per mile for each of said years. Upon appeal by the appellee from said judgment to the circuit court, the judgment of the county court was reversed, and the appellant’s proceedings were dismissed. The appellant has appealed to this court. By the act of the Legislature of 1864, all the railroads in this State were assessed at twenty thousand dollars per mile. The president, &c., of each road were required, on or before the 10th day of July of each year, to furnish, under oath, to the Auditor of the State, the length of the road and its branches belonging to them. And each road was required to pay the same rate of tax on said assessment as was levied by law upon real estate. So, by said act, the tax upon railroads is specific. [139] This court, in the case of Applegate v. Ernst, 3 Bush, 648, held, that in the absence of a statute expressly authorizing it, a railroad, for the reason that it was an entirety, could not be legally assessed in fragments ; therefore, the portions of the road, situated in each county, could not be assessed in such county for local purposes. Also, in the case of the Louisville & Nashville R. Co. v. The Warren County Court, 5 Bush, 246, this court, reiterating the same doctrine, held, that under an act of the Legislature of the State, passed in 1856, authorizing Warren county to collect an ad valorem tax, to be levied on all the property in said county, “listed for taxation for revenue purposes,” the county of Warren had no power to force the Louisville & Nashville Railroad Company to pay taxes on its road in said county. The' court, in that case, held, that as the road, from end to end, was an entirety, it was not subject to fragmentary taxation, unless such taxation was expressly authorized by an act of the Legislature; that enactments of the Legislature, authorizing local ad valorem taxation, should not be made to apply to railroads by construction. The cases of Elizabethtown & Paducah R. Co. v. Elizabethtown, 12 Bush, 233 ; Graham v. Mt. Sterling C. R. Co., 14 Bush, 425; Franklin County Court v. Louisville & Nashville Railroad Company., 84 Ky., 59, construe the cases of Applegate v. Ernst, and Louisville & Nashville R. Co. v. Warren County Court, as above indicated. But the appellant contends that the acts of 1865 and 1869 are more comprehensive than the act relied on in [140] > the case of Louisville & Nashville R. Co. v. Warren County Court, and, therefore, included the appellee’s road. The act of 1865 authorized a tax to be levied “on all property of said county liable to taxation for State revenue.” The act of 1869 authorized a tax to be levied on “the taxable property in said county, listed and taxed under the revenue laws of this State.” The act relied on in the case of Louisville & Nashville R. Co. v. Warren County Court means, that Warren county was authorized to levy and collect an ad valorem tax on all the property in the county subject to taxation under the general revenue laws of the State. The language of the acts of 1865 and 1869 means no more. The railroads of the State at that time were not taxed under the general revenue laws of the State, but were taxed specifically at the rate of twenty thousand dollars per mile. Also, according to said decisions, each railroad in the State was regarded as an entirety, and was not subject to fragmentary taxation, unless such taxation was expressly authorized. It follows that the railroads of the State, according to said decisions, were not subject to local taxation by implication. Therefore, the Legislature, by an act approved March 17, 1876, recognizing the fact that the railroads in this State, by reason of said decisions, were not subject to local ad valorem taxation, expressly subjected them to such taxation. From what has been said, it follows that neither the act of 1865 nor the act of 1869 expressly includes the appellee’s road. Therefore, still adhering to the views expressed in the-case of Franklin County v. The Louisville & Nashville [141] R. Co., 84 Ky., 59, Law Rep., we are constrained to hold that under the law, as it was construed by this court in the cases of Applegate v. Ernst, and Louisville & Nashville R. Co. v. Warren County Court, above referred to, the appellee’s road should not be subjected to the appellant’s taxes for the years 1866, 1867, 1870, 1871, 1872, 1873, 1874 and 1875. The appellant also contends that the circuit court ■should have dismissed the appellee’s appeal, on the .ground that the decision of the county court was a ministerial, and not a judicial act. The powers of the county court, in cases like this, are conferred by sections 14, 15, 16 and 22, article 6, ■chapter 92, General Statutes, and not by the Auditor’s .Agent Act. By said section 22, the county clerk, upon information filed by the sheriff, summons the supposed delinquent to appear and show cause why his property should not be taxed. The supposed delinquent may appear before the county court and show that his property was not subject to taxation, or may address any excuse or extenuating circumstance that he may have for not listing the same, all of which the appellee attempted in this case; and-it was the duty of the county court to pass upon these questions, which it did. Also, if the respondent is found willfully delinquent, it is the duty ■of the court to impose a penalty upon him; upon which question the court passed in this case. If the respondent is not found willfully delinquent, but it is found that his property is liable to the tax, the ■court directs the clerk to assess it; the court, in such [142] case, simply passes -upon the question as to whether the property is liable to be taxed. In this proceeding by the court the first question is, is the property liable to taxation \ If decided in the affirmative, the next question is, was the owner willfully delinquent ? If yea, the court may fine him, &c. But the court does not make the assessment. It orders that it shall be done upon the finding of the fact that the property is liable to be assessed. In determining these matters, the court acts judicially and not ministerially; hence, an appeal from its decision lies to the circuit court. The judgment is affirmed.