88 Ky. 673 | Ky. Ct. App. | 1889
delivered the opinion of the court.
July 13, 1887, E. C. Baldwin, administrator of R. B~ Bowler, brought an action in the Kenton Chancery Court to enjoin H. P. Whitaker from taking any steps to collect taxes, amounting to over $23,000, which had, upon a proper information filed by him as auditor’s agent in the-county court, and upon hearing by it, been assessed-against the estate in the administrator’s bands for the-> years 1866 to 1882, inclusive.
The statute relating thereto provides : “ That in addition to other duties imposed by law, it shall be his “ [auditor’s agent] duty, where any person in this Com-
The county court appointed Auditor Agent Whitaker to collect the taxes.
The sheriff of a county is, by virtue of his office, the collector of the revenue. If, however, he fails to execute bond therefor, the statute authorizes the county court to appoint a collector.
The statute above cited, in speaking of “ a collector,” doubtless refers to a case where one has been appointed in place of the sheriff; but it is unnecessary to a settlement of this controversy to determine whether the county court had the power to appoint the agent of the auditor collector of these taxes in place of the sheriff, owing to the conclusion we have reached as to the right to sue for them, and because the statute evidently intended that the auditor’s agent should have the general supervision of such matters in his county.
The county court in making such an assessment merely does what the assessor has failed to do. That in the
The property which had been in the hands of the administrator consisted altogether of choses in action. There was no visible property of any character in Kentucky belonging to the estate. The heirs of Bowler resided in Ohio, and prior to the filing of the information in the county court the administrator had settled his accounts and disbursed to them the entire fund, which had been in his hands during the years for which the .assessment was subsequently made. The county court in making it acted under what was known as “the equalization law,” and which, as then in force, authorized the tax-payer, in assessing estates of the character of that held by Baldwin, to deduct his indebtedness, thus taxing only the surplus.
The administrator rests his claim to an injunction upon the ground that the assessment was void, because, as he claims, there was, during all the years covered by it, a bona fide indebtedness upon the estate, and which it expected to pay, more than equal to the assets. If this be true, then his right to enjoin the collection, however attempted, of the tax must be sustained. It is apparent if the claim, which it is said was such an indebtedness under the statute as to authorize it to be considered in making the assessment, was in truth such, that then it at all times exceeded the assets in his hands, and there was therefore no taxable estate.
July 14, 1887. an action was instituted in the Kenton
The ordinary action was transferred to the Kenton-Chancery Court, the two suits were consolidated, and, upon hearing, the Chancellor by one judgment denied the administrator’s right to any injunction, and rendered judgment against him for the taxes, with interest from the time when the suits were brought. He has appealed' as to both actions.
Two questions are presented : 1. Bid an indebtedness, such as the statute recognizes, exist ? 2. Can a suit for the taxes, if they were leviable, be maintained ?
Section 6, article 1, chapter 92, of the General Statutes (Ed. 1883), in defining the character of indebtness which could be deducted by the taxpayer, says: “ The indebtedness which may be deducted, as aforesaid, must be “just and honest debts owing as principal, and not as “ surety, and created for a valuable consideration, which “ the person intends to pay, and not with a view to lessen “ the amount of his taxable property.”
In 1859 R. B. Bowler bid in the Covington & Lexington railroad, at a sale made under a decree of the Fayette Circuit Court, at the price of $2,125,000. The judgment did not require the purchaser to give bond with security, as is usual. The sale was made to pay certain bonds of the railroad company, and as a security that the purchase
February 11, 1864, the parties went into the Fayette Circuit Court, and it being shown what had been done, as above recited, Bowler was permitted to withdraw the collaterals he had deposited by way of security, and others in lieu thereof were deposited by the trustees.
September 30, 1865, the Covington & Lexington Railroad Company brought an action in the Kenton Circuit Court against the trustees and Bowler’s heirs, he being then dead, seeking to have his purchase declared to have been made in trust for it. The action was dismissed, but upon appeal to this court the judgment was reversed, the
It is evident that Mr. Bowler never expected, nor did his ■administrator intend or expect, to pay this alleged indebtedness. If any personal liability upon the part of Bowler for it ever existed, he and his estate had been released therefrom, not m express words by any judgment, but in ■effect. It was certainly not an indebtedness within the meaning of the statute: It was not one which Bowler, ■or his administrator after him, “ intended to pay.” The latter says he intended to pay it “ if required,.” If he knew it was actually owing by the estate, it is strange that with his business experience he should, during his ■administration, have disbursed over a million and a half >of dollars to the heirs, leaving nothing in his hands with which to pay it. The inference is irresistible. He did ■not think the estate owed it, and he never expected or intended to pay it. The estate never has paid any of it, and undoubtedly will never have to do so. It should
The other questioxi is not fx’ee from difficulty.
There is no statute in this State, save as to x’ailroad companies, authox’izing a suit against the taxpayer for his taxes. Section 17, ai’tic-le 11, chapter 92, of the General Statutes (Ed. 1883), confers no such right. It relates to actioxxs against defaulting collectors of the revenue. The title so shows. If, therefore, such a right exists, it must be by vix’tue of the general law.
The exercise of the power of taxation is legislative,, ■ and xxot judicial in character. Neither the levy or collection of taxes is an inherent power of the judiciary. It has ordinax'ily xxo xnore power to collect them than it has to levy them. These are not judicial acts.
The power to provide for the public welfare, by means, of the sovereign power of taxation, has, under the distribution of governmental powers in this country, been given to the legislature. Taxes can, therefore, be collected only through legislative authority. If it does not exist, the remedy is an appeal to the law-making power for additional legislation.
The taxes in question were not levied in obedience to a contract, obligation or under judicial direction. They are not a debt in the legal meaning of the term. Debts are obligations founded upon contracts, express or implied. The consent of the taxpayer is not necessary, however, to the imposition of a tax; it comes in invitum. The payment of it is rather a duty which the citizen owes to> his government in return for the protection given to his person and his property.
It is true, that although the collection of taxes is a ministerial act, yet the legislature may empower, and even require, the judiciary to do in a judicial way what ordinarily belongs to the executive branch of the government. The remedy by suit may be given by statute.. This, however, has not been done.
It is urged, however, that here the assets were intangible; that, in fact, there are none nowin the State, the' administrator having removed them by distribution; that it was his duty to pay the taxes; that he is liable as for a devastavit, and that no relief can be had unless a judgment can be obtained against him. In short, that there is no remedy unless it can be had by judicial proceedings. "We are aware that this court has said that such a peculiar state of case might possibly be presented, as to authorize them, and that it has so been held by the courts of one State and probably others. (Ryan v. Gallatin County, 14 Ill., 78.) The ruling has been based upon the ground of inadequate remedy. This court has,, however, never assented absolutely, even per dictum, to. this doctrine; and after all the thought possible for us to give it, we are satisfied that the highest considerations of' public policy forbid it.
'If the judiciary may interpose whenever the legislature fails to provide adequate means for the collection of'
If Baldwin may be proceeded against by suit because he is an insolvent delinquent, then the same course may be adopted as to other like delinquents. The courts will be burdened with suits for the collection of taxes, and the policy and construction of our law, which has prevailed for the nearly a century’s existence of our State government, will be violated.
The legislature has expressly provided that a railroad corporation may be sued for its taxes. (General Statutes, section 5, article 3, chapter 92.) This grant of power was given to avoid the evils which would result to the public from a distraint of the property; and the enactment implies the existence of a legislative opinion that in its absence no such suit could be maintained.
In view of this settled policy of the State, the judiciary should not imply a power to itself in violation of it, but confine its jurisdiction, in the absence of other legislation, to compelling the proper performance of their duties by the collection officers. The statute confers this power upon it, and in case of non-payment by them they may properly be proceeded against as for debt.
The same reasons which forbid a court to levy a tax
It is unnecessary to notice the cross-appeal, seeking the recovery of more interest than the lower court allowed. It falls with the denial of the right to sue for the taxes.
. The judgment, in so far as it dismissed the action of the appellant to enjoin the collection of the tax, is affirmed; but so much of it as rendered judgment in the other suit for the taxes is reversed, with directions to dismiss the action.
Each party will pay his own costs in this court.