Commonwealth v. Nute, 115 Ky. 239

Commonwealth v. Nute

115 Ky. 239 | Ky. Ct. App. | 1903

Opinion op the court by

JUDGE NUNN

Reversing.

On the 3d day of April, 1901, the auditor’s agent for Fleming county instituted this action or proceeding in the Fleming county court to have certain property belonging to appellee assessed for taxation, alleging that she had failed to assess the property as required by law. A trial was had in the county court, and that court dismissed the proceedings. The appellant appealed to the circuit court, and another trial was had. On this trial the proof showed the following facts: That appellee had, in each and every year, at the proper time, listed her money and all property owned by her, except the following annuity, obtained as follows: She iwas the owner of a dower interest in 218 acres of land, and on the 20th day of August, 1890, she .sold *243and conveyed her Interest therein to Charles Nute and J. B. Glasscock for and in consideration of the sum of $500, due and payable on the 1st day of March, 1892, and $500 each succeeding 1st day of March thereafter during the natural life of appellee. It is conceded. that she received $500 on the 1st day of March each year since that time on this contract, and paid the taxes thereon, or the balance on hand, on the 15th day of September each year. The circuit court dismissed the proceedings, from which judgment appellant appeals to this court.

The appellant contends that the appellee should have listed for taxation for each of the ten preceding years the present worth or the actual value of the obligation of Nute and Glasscock, valued under the life tables. We are of the opinion that the appellant was correct in its contention. The appellee!should have listed this obligation according to> its present value for each year according to the life table. If she had retained her dower interest in the land, she would have been compelled to pay the taxés on it, and this obligation represented her interest therein. There is a very important question involved in this proceeding, and in cases of like character, and that is as to whether or not there is any law as to limiting the time for retrospective assessments of property for taxation. This court is of the opinion that the statute laws of the State settlq the question that limitations do apply, and that property can not be retrospectively assessed for taxation for more than five years from the institution of a proceeding like this. Section 469 of the Kentucky Statutes is as follows: “The term ‘action,’ when used in this revision, shall be construed to include all proceedings in any court of this Commonwealth.” By this section it will be seen that this proceeding by the auditor’s agent to back-assess for taxes is an action within *244the meaning of the statutes. Section 2523 of the Kentucky statutes is as follows: “The limitations prescribed in this chapter shall apply to actions brought by or in the name of the Commonwealth, in the same manner as to actions by private persons, except where a different time is prescribed by some other chapter of this revision.” Section 2515 of the Kentucky Statutes of the same chapter as the above section, in so far as applicable to the question before us, is as follows: “An action upon a liability created by statute, when no other time is fixed by the statute creating the liability, . . . shall be commenced within five years next after the cause of action accrued.” Thus it will be seen, from the statutes quoted, that this proceeding is an action in the name of the Commonwealth, and for the benefit of the Commonwealth, and that the statutes of limitations run against it the' same as against a private person; that a liability created by the statutes is barred after five years from the accrual of the cause of action or proceeding, and, there being no provision in the statutes prescribing a different time for the commencement of proceedings of this kind, the five-year rule must apply. And there can be no question but that this proceeding is to enforce a liability created by statute, and comes within the rule prescribed by section 2515 of the Kentucky Statutes. Section 4021 of the Kentucky Statutes declares that counties, cities, etc., shall have a lien on the property assessed for the taxes, which shall not be defeated by gift, devise, sale or alienation, unless the gift, devise, etc., shall have been made for more than five years before the institution of proceedings to enforce the lien; and it also says that, when any land shall not be assessed in any one year, it may be assessed retrospectively for that year at any time not later than five *245years thereafter, but the lien thereby accruing shall not thereby prejudice the rights of purchasers, acquired in the meantime or before the assessment. It will be observed that this section is preserving the State’s lien for taxes and protecting innocent purchasers, and the sentence, “that land can be retrospectively assessed at any time not later than five years thereafter,” simply declares, as to lands, the general limitation law on the subject. By an act approved May 23, 1890 (page 149, c. 1763, Acts 1889-90, vol. 1), the Commonwealth was given power to institute and maintain actions to recover all taxes which had accrued or might thereafter accrue on property which could not be collected by the ordinary methods of distraint and sale, for the purpose of enforcing the State’s lien on the property, which for any reason, could not be sold. This had reference to railroads, waterworks, wharf property, and other like property. Said act concludes as follows: “But no action shall be instituted upon any claim for taxes that has been assessed or might have been- assessed more than five years before the commencement of same.” As will be seen, this act authorizes an action for the purpose of collecting taxes due the State on property which could not be sold under the ordinary methods; and, as to this class of property, the five-year limitation was declared, which agreed with the general limitation law for the assessment of property for taxation. It will hardly be contended that the Legislature intended by section 4021 and the act of 1890, above referred to, to give lands and the property referred to in the act of 1890 a preference over other property. We can see no reason why the State, counties, etc., should be allowed to retrospectively assess for taxation money, notes, bonds, horses, mules, cattle and other personal property, without any limitation as to time, and be limited to five *246years in retrospectively assessing lands, railroads, waterworks, wharf property in cities, and other like property; and we do not believe that the statutes referred to will authorize any such construction. We are aware of several decisions of this court in the past holding or seeming to hold the contrary opinion, but the most of them were rendered when the statutes were different from those that now exist, and some of them were mere dicta. But all such as are in conflict with this opinion are no longer authority on the question herein decided.

For these reasons, the case is reversed, and the cause remanded for further proceedings consistent herewith.

Whole court sitting.

Petition for rehearing by appellant overruled.