Bank of Commerce v. Stone

108 Ky. 427 | Ky. Ct. App. | 1900

Opinion' of the court by

JU-DGIE PAY-NTER

Reversing.

The appellant seeks to compel the appellee, by mandamus, to issue to it his warrant for excessive payments of taxes which were made at the times, for the years, and in amounts as follows, to-wit: “November 12, 1895, overpayment for 1893 (being the difference between 42% and 75 cents), $2,000; November 12, 1895, overpayment for 1894 (being- the difference between 42% and 75 cents), $2,600; July 3, 1895, overpayment for 1895 (being the difference between 42% and 75 cents), $2,600; July 3, 1896, overpayment for 1896 (being the difference between 42% and 75 cents), $2,600; July 26, 1898, overpayment for 1897 (being the difference between 52% and 75 cents), $1,800; July 26, 1898, overpayment for 1898 (being the difference between 52% and 75 cents), $1,800.

The claim that it is the duty of the auditor to issue his warrant is based upon sections 162, 163, Kentucky Statutes, which read as follows:

“Section 162. When it shall appear to the Auditor that money has -been paid into the treasury for taxes when no such taxes were in fact due, he shall issue his warrant on the treasury for such money so improperly paid, in behalf of the person who paid the same. Nothing herein contained shall authorize the issuing of any such warrant in ¡favor of any person who may have made payment of the revenue tax due on any tract of land, unless it is manifest that the whole of the tax due the Commonwealth on such land has been paid, independent of the mistaken payment, and ought to be reimbursed.

“Section 168. He shall not draw Ms warrant for any money improperly paid for taxes, unless application be made in each case within two years from the time when such payment was made.”

The application for the warrant to refund the taxes claimed to be improperly paid was made on June 30, 1899, and except for the payments of July 26,1898, of $1,800 each, it was not made within two years from the time the payments were made. We may ad'’ xt this point that the Auditor should issue his warr ^/for two arhounts of $1,-800 each; being the overpayments of taxes for the years of 1897 and 1898.

It is claimed that the warrant should be issued for the other overpayments, because the running of the statute was suspended by reason of certain proceedings in court and judgments of courts. Under what was known as the “Hewitt Law,” of May 17, 1886, banks were not required to pay certain county and municipal taxes, and it is claimed that the banks, under the terms of that act, had irrevocable contracts which' prevented the Legislature from enacting a law imposing upon the banks the burdens of county and municipal taxes during their corporate existence. After the approval of the act of November 11, 1892, by which it was attempted to impose the local burdens of taxation upon the banks, the banks denied its- validity, and certain of them were sued by counties 'and municipalities to enforce the payment of local taxes. To none of these proceedings the appellant seems to have been a party. In passing upon this controverted question, this court, through. Judge Pryor, on June 1. 189;',’ delivered an opinion in which it was held that they were not liable for county and municipal taxes. Com. v. Banks, 97 Ky., 590 (31 S. W., 1013). At the time this action was disposed of there were other cases pending against other banks in the courts, involving the same question, which were disposed of by this court in an opinion delivered on March 24, 1897 (Deposit Bank of Owensboro v. Daviess Co., 39 S. W., 1030), overruling the previous decision, and holding that the banks were liable for city and municipal taxes. Thus the matter remained until 1898, when the appellant and other banks went into the federal court and questioned the right of the counties and municipalities to impose the local tax upon them, and enjoined the auditor from making a certification to the county authorities with the view of imposing such taxes upon them. In that action an injunction was obtained, restraining the auditor from doing so. It finally reached the supreme court of the United States (19 Sup. Ct., 747, 43 L. Ed., 1028), and it decided that the appellant did not have an irrevocable contract, and was compelled to pay the county and municipal taxes; but the circuit court on June 4, 1898, (88 Fed., 398), had held that they were not liable for local taxes, for reasons not necessary to mention here. It is claimed that the opinion of June 1, 1895, and that of the circuft court of appeals, suspended the running of the statute of limitation, and therefore they made the application within the time prescribed by the statute.

So the question here involved is whether the running of the statute of limitation was suspended. To support this claim, sections 2535 and 2544, Kentucky Statutes, are relied upon, which read as follows:

“Section 2535. When the collection of a judgment or the commencement of an action is stayed by injunction, the time of .the continuance of the injunction is not part of the period limited for the collection of the judgment or the commencement of the action.”

“Section 2544. In all cases where the doing of an act necessary to save any right or benefit is restrained or suspended by injunction or' other lawful restraint, vacancy in office, absence of an officer, or his refusal to act, the time covered by the injunction, restraint, vacancy, absence, or refusal to act, shall not be estimated in the application of any statute of limitations.”

It is insisted that these judgments imposed a legal restraint on the appellant against making any application to the appellee under sections 162, 163, Kentucky Statutes, until after May 15, 1899, when the supreme court of the United States acted in the case. The taxes for the years of 1893,1894,1895, and 1896 were paid while the opinion delivered June 1, 1895, by this court, was in force, and the taxes for the years of 1897 and 1898 were paid after that opinion had been overruled. There certainly was no legal restraint under the opinion of this court delivered in March, 1897, as it held the banks were not required to pay to the State the excess of taxes here sought to be recovered. The injunction proceedings in the federal court, instituted in 1898 by the appellant, can not be held to be a legal restraint, which would prevent the running of the statute of limitation. Litigation between the counties and municipalities and other banks could not operate as a legal restraint on the appellant. After the delivery of the opinion of 1895, cities and municipalities were asserting that the banks were compelled to pay local taxes, and appeal» were prosecuted to this court. Until the opinion of this court in 1897 the Auditor would not have issued warrants to the appellant for the sums here claimed, but the fact that he would not do so did not prevent the appellant from making application to have the sums claimed .refunded for the years other than 1897 and 1898. The right to have it refunded could have been saved by simply filing the application as required by the statute. The banks were trying to be relieved of the burden of local taxation. They were employing every legal means to prevent their payment, and were exceedingly anxious to pay that which is here sought to be recovered. The appellant, in its confidence in its ability to sustain its claim, neglected to make the application which the statute required should be made in order to give the Auditor authority to issue his warrant. The Auditor would have no authority to issue a warrant refunding taxes paid in excess of the proper amount, except for the section of the statute quoted. It is a statute conferring special authority upon the Auditor, and it must be strictly followed, and a party claiming the benefit of its provisions is required to make the application in the manner and at the time required by the statute. As we have said, the Auditor should issue his warrant to refund the excessive tax paid for the years of 1897 and' 1898, as the application was made at the proper time. We do not think the authorities cited by counsel are in point, and to follow which would authorize an interpretation of the statute other than that which we have given it. The Legislature has the authority to give the relief sought, and doubtless will do so. The judgment is reversed for proceedings consistent with this opinion.