126 Ky. 649 | Ky. Ct. App. | 1907
Opinion of the Court by
Reversing.
This proceeding in the county court to require the personal representatives of a deceased taxpayer to list property which had been omitted from assess^ ment was begun within a week or so after the taxpayer’s death and the qualification of the executors of her will. It was dismissed because the court deemed it had been brought in violation of section 3847, Ky. St. 1903, prohibiting the bringing of any action other than to settle the estate against a decedent’s estate within six months of the qualification of its personal representative. The circuit and county courts each took the position that the word “action”
Is this an “action” within every meaning of the statute? It has been held that the county court acts ministerially in assessing property under this statute. Baldwin v. Hewitt, 88 Ky. 673, 11 Ky. Law Rep. 199, 11 S. W. 803; Cassidy v. Young, 92 Ky. 227, 13 Ky. Law Rep. 512, 17 S. W. 485. So far the proceeding is in no sense different from that of any other assessing officer’s action. If the assessment is made, then: the taxes are collected, not under the judgment of the court, or by execution or by any process issuing out of the court, but by the collector of taxes as all other taxes are required to be collected. , The proceeding then is an assessment only, pure and simple. There are only two features of section 4241. that seem to indicate that the proceeding is of that judicial character which was evidently in mind in the enactment of section 3847, supra. One is the expression: “Prom so much of the order of the court deciding whether or not the property is liable to assessment either party may appeal as in other civil cases. ’ ’ The other is the infliction of a penalty of 20 per cent, and costs upon the recusant. We think the expression just quoted means to describe the manner of prosecuting an appeal in the matter, rather than to classify it as a civil action. The infliction of the penalties is not a recovery against the taxpayer. It is not dependent upon the discretion of the court, or subject to be denied or abated. It is in the same category as the tax itself, imposed by the same authority, and collectible
Provisions of this character are not deemed to apply to the Commonwealth, unless by the express terms or the necessary implication of a statute. The reason the limitation statutes of this State do apply to such proceedings is because the statutes expressly so provide. C., St. L. & N. O. Ry. Co. v. Commonwealth, supra, and Commonwealth v. Nute, supra
The judgment of the circuit court is reversed, and same remanded for further proceedings not inconsistent with this opinion