Commonwealth ex rel. Alexander v. Bacon

Opinion op the Court by Judge Hobson Affirming On April 1,1905, A. J. Bizot, as revenue agent, instituted in the Jefferson county court proceedings in the name of the commonwealth of Kentucky against John Bacon to compel the listing for taxation of intangible personal property claimed to have been omitted frtím assessment .for the years 1901, 1902, 1903, 1904 and 1905. The defendant filed an answer, and on May 26, 1905, a judgment was entered in the action by which personal property of the value of $3,750 was assessed to Bacon as omitted for each of the years 1901, 1902, 1903 and 1904, and $10,000 for the year 1905. Bacon paid the taxes and penalties as fixed by the judgment. In the meantime, on May 24th, this proceeding was instituted in the name of the commonwealth by George H. Alexander, as revenue agent, against the same defendant, seeking to have listed intangible personal property omitted from taxation for the same years. The statement filed in the second case is similar to that filed in the first case, except that it fixes the amount of the intangible property omitted from assessment at a larger figure than in the first case. The defendant pleaded the judgment rendered in the first suit in bar of the second. The county court sustained the plea and dis [33] missed the proceeding. The commonwealth appealed to the circuit court, who concurred in the judgment of the county court, and from this judgment the ap^ peal before us is prosecuted. It is insisted for the appellant that, if one assessing officer assesses a part of the taxpayer’s property and omits a part of it, the part so omitted may be assessed by another assessing officer; that the county court, in making an assessment under section 4241, Ky. St. 1903, is simply an assessing officer, and, if in-one proceeding a part of the defendant’s property is omitted, the part so omitted may be assessed in another proceeding. We cannot concur in this view, for then, after this proceeding is tried, another revenue agent might bring a third suit on the gro und that some of the defendant’s property is still omitted from assessment, and so there would be no limit to the number of suits which the taxpayer might be called on to defend as to the assessment of his property. The proceeding under section 4241 is a proceeding by the commonwealth. The revenue agent is only the officer authorized to institute the proceeding. It is the commonwealth’s suit. The commonwealth, like all other suitors, must in one action state its whole claim, and, when a recovery has been' had in one action, there can be no other action based on the same cause of action. When the defendant is proceeded against in the county court to have property assessed which has'been omitted from assessment for a given year, the court determines what property has been omitted from assessment, and the judgment, unless appealed from or vacated in some way, is equally binding both upon the commonwealth and upon the defendant. The statute does not contemplate a succession of suits under- that- section to list property [34] omitted from assessment in a given year. The omission of property from a given assessment is the cause of action, and, when this cause of action is merged in a judgment, no other suit can be brought upon it while that judgment is in force, unless it is collusive. Judgment affirmed.