Mossett v. Newport & Cincinnati Bridge Co.

JUDGE BURNAM delivered the opinion of the court. The Newport and Cincinnati Bridge Company seeks in this action to enjoin the Board of Supervisors for Campbell county from increasing the assessment of its bridge and approaches over the valuation placed thereon by the assessor. The grounds upon which it relies are that the orders appointing the defendants supervisors of taxes are void for the following reasons: First, because they were made at Newport on the third Monday in November, 1898, instead of at Alexandria, the county seat, on the first Monday in November; second, because the county court appointed twelve persons to act as supervisors, when, under the' law, it had the power to appoint only eight; third, that the Board of Supervisors failed to meet at the county seat, Alexandria, on the first Monday in January, but, instead, met in Newport; fourth, that the Board of Supervisors did not increase the assessment of its property during the first fifteen days of its session, but only took up this question upon the reconvening of the board to hear complaints and pass upon the complaints of taxpayers. We will consider these grounds in the order in which they are relied on. While it is true- that Alexandria is the county seat of Campbell county, the Legislature, by an act approved February 25, 1863, provided: ."“That in ‘addition to the county court now held in the county -of Campbell the pre [521] siding judge of said court shall hold annually twelve terms of the Campbell County Court in the city of Newport. They shall be held at the court house on the third Monday of each and every month, and said judge may adjourn said court from day to day and from time to time if the business requires it; and he shall have power to call and hold special terms of said court in said city for such terms as the business may require; but no court of claims shall be held in Newport.” The third Monday in November, 1898, fell on the 21st; and the order of the county court appointing the Board of Supervisors was made at the county court held in Newport on that date. In our opinion, under the provisions of the act, supra, the county court sitting at Newport had the power to make any order or transact any business imposed upon it by law which it could have lawfully performed at Alexandria; the only restriction imposed by the act being that “no court of claims shall be held at Newport.” The order of November 21, 1898, appointing the Board of Supervisors, made at the regular November term held in Newport, was a legal and valid one. We are of the opinion that under section 4115, Kentucky Statutes, as the county of Campbell contains one second-class city and two fourth-class cities, the Board of Supervisors properly consisted of twelve persons. See Kentucky Statutes, section 4115. Whilst under section 4119, Kentucky Statutes, it was the duty of the Board of Supervisors to convene at the county seat on the first Monday in January, yet we are of opinion that this provision is only directory, its purpose being simply to fix the time and place for the meeting of, the board. If, as a matter of fact, they did on that day meet at another place, and proceed to discharge their duties as [522] supervisors, such irregularity would not render any assessment made by them invalid. See Kentucky Statutes, section 4128. Though sections 4120 and 4121, Kentucky Statutes, provide that the Board of Supervisors shall not continue in session for more than fifteen days, and may during this period increase or decrease any list if the evidence be clear and unmistakable that the valuation is not a fair cash value, there is nothing in the law which forbids them, upon reconvening to hear complaints, from taking up any matter which may have escaped their attention during the first meeting.' Section 4123 expressly provides that “the board, in reassembling, shall hear all complaints and pass upon the assessment of all taxpayers and for that purpose remain in session not more than ten days.” Section 4128 provides: “Any informality or irregularity in the execution of their duties as supervisors and any failure of duty on their part shall not render an assessment invalid. But any taxpayer, feeling himself aggrieved by the action of said Board of Supervisors, may appeal to the judge of the county court within ten days after the final adjournment of said board.” And this is the only remedy provided by law that an aggrieved taxpayer can avail himself of to avoid excessive valuation. See Marion Co. v. Wilson, 20 Ky. Law Rep., 1193, [49 S. W., 8]. For the reasons indicated, the judgment is reversed, and the cause remanded, with instructions to sustain the demurrer, and for other proceedings consistent with this opinion.