120 Ky. 199 | Ky. Ct. App. | 1905
Opinion by
Affirming,
The first question with which we are confronted is, upon whom was the burden of proof in the action? Appellant urgently insists that it was incumbent upon the city to allege and prove every essential fact necessary to make out the validity of its tax claim. This position is untenable. It is true the presumption will be indulged as an original proposition that the regular assessments for the years in question were valid, and that the officers making them performed their duty; but this presumption, when the officer under the authority of law and his oath of office makes a retrospective assessment, will be overcome and replaced by the new presumption that in making the retrospective assessment he also did his duty. It was as much the duty of those having the matter in charge to make retrospective assessment of omitted property as to make the regular assessment; and the same presumption of regularity and validity will attend the
The claim of a want of proper notice of the retrospective assessment has already been largely disposed of in what we said as to the burden of proof. It was necessary (assuming that notice was vital) for appellant to allege, and, if denied, prove, a want of notice of the retrospective assessments by the officer. While this would involve the proving a- negative, which is contrary to the general rule, yet this is necessary in cases such as this under discussion. As the law presumes that the officers having the matter in charge did their duty, if notice was necessary it will be presumed to have been given. (Greenleaf on Evidence, sec. 78; Brandt v. Hyatt, &c., 7 Bush, 303; Brown v. Young, 2 B. Mon., 26.) In the latter case the court cited the ancient case of Monk v. Butler, 1 Rol. Rep., 83, and said: “That was a suit for tythes, in which the defendant pleaded the plaintiff had not read the thirty-nine articles, and it was held, both in the Spiritual Court and the Court of King’s Bench,' upon a motion for a prohibition, that the defendant was bound to prove it, ‘for the law will presume that the parson had read tlie articles, for otherwise he would lose his benefice; and when the law presumes the affirmative, then the Negative must be proved.’ ” And also: “In the case of Williams v. The East Ind. Com., the rule was applied with the effect of requiring the plaintiff to prove that the defendants had not given notice of the combustible nature of certain oil, etc., which they had put on board the plaintiff’s ship. ’ ’ While appellant in this case did not show that it had not received notice of the re-assessment, we
Assuming, for the purposes of this case, that- the ordinance establishing a back-tax collector is valid, we do not think this officer displaces the regular assessor, or makes it less the duty of the latter to retrospectively assess omitted property. Sec. 3179 of the Ky. Stats, of 1903 (cities of the second class), among other things, provides: “Whenever the assessor ascertains that there has, in any former year or years, been any property omitted which should have been assessed, he shall assess the same against the person who should have been assessed with it, if living, if not, against his representative.” There is nothing in the ordinance which indicates that the back-tax collector shall be more than an additional aid in looking up and assessing omitted property, just as it is made the duty of both the sheriff and auditor’s agent to look up and have assessed omitted property for State taxation.
The claim by appellant that the city only had authority to sell the tax bills involved here is evidently based upon a misreading of sec. 3187 of the Ky. Stats, of 1903 (charters of cities of second class), which provides that the tax bills against real property shall be sold at public auction, but the bills for taxes on personalty shall be collected by distraint, etc.
We attach no importance to the formal visit of delinquent tax collector, 0 ’Mahoney, and the then county attorney, Allen, to the place of business of appellant, or the exhibition of the property of the trust estate made
The claim of appellant to escape a retrospective assessment of the property of its cestui que trust in this ease is wholly technical. That it owes the tax it seeks to evade is made apparent by an examination of this record. Although it had in its hands the means of instantly and most conclusively showing either that the trust estate did not own the property with which it was assessed, or that the values were too high, it introduced no evidence whatever on this subject. While it was not incumbent upon the appellees to introduce, any evidence, being authorized under the principles herein enunciated to await the evidence of appellant showing the invalidity of the assessment complained of, yet they did introduce evidence which we think clearly establishes that appellant justly owes the amount of the tax which has been adjudged against the estate of its cestui que trust. Equity does not favor mere technical defenses to the collection of tax claims. Taxes are the very life blood of the government. Thé duty of paying a ratable share of this public burden is incumbent on every property, holder. Whatever just part of this common burden is shirked by him whose duty it is to bear it, is necessarily cast as an additional burden upon other shoulders; and therefore, while at law one may sometimes be permitted to interpose mere irregularities as a defense to the imposition of taxes, when he asks the aid of the
Upon the whole case, we are of opinion that no injustice has been done appellant, and the judgment is affirmed.
Petition for rehearing by appellant overruled.