189 Ky. 616 | Ky. Ct. App. | 1920
Opinion op the Court by
Affirming.
The Frankfort Distilling Company is a corporation organized under the laws of the state of Kentucky, and was liable for a license tax on its capital stock under section 4189a, Kentucky Statutes, up until the year 1918, at which time it became liable under section 4214a-l, Kentucky Statutes, for a license tax of two (2c) cents on every proof gallon of distilled spirits shown by its official records to be in its possession. The state tax commission in the latter part of 1917 furnished to the Frankfort Distilling Company the necessary blank required by section 4189d, Kentucky Statutes, on which to make its report for a license tax based upon its authorized capital stock. Shortly thereafter and in due time the corporation returned the blank properly filled out, signed and verified, to the tax commission, which body by the aid of the information contained in the report assessed the Frankfort Distilling Company under sections 4189a and 4189c, a license tax of $125.00. This fact was certified by the tax commission to the auditor, and the commission notified the Frankfort Distilling Company of the assessment and the amount thereof. The auditor certified the amount of the assessment to the treasurer. The distilling company made no objection whatever to the assessment, and shortly thereafter paid the $125.00 into the state treasury. About the first of the year 1919, a similar blank was sent to the distilling company which was filled out and returned in the same manner and the tax paid in 1919. Thereafter on the 15th of August, 1919, the distilling company instituted this action against the auditor to recover the $250.00 paid in by it on such license tax, praying a writ of mandamus against the auditor, requiring him to draw his warrant in favor of the plaintiff, distilling company, upon the treasury of the Commonwealth for said sum.
The auditor filed his answer, to which the distilling company interposed a general demurrer which' was overruled. The distilling company then filed reply completing the issues. To the reply the auditor filed a general demurrer which was overruled, and the auditor excepted.
It is admitted that the Frankfort Distilling Company is a corporation and that it was required in the years 1918 and 1919 to pay a license tax of two (2c) cents on every proof gallon of distilled spirits shown by its official record to be in its possession on the date fixed by lay", under section 4214a-l Kentucky Statutes; that it was not liable for the license tax imposed by sections 4189a and 4189c, Kentucky Statutes, and that it should not have paid into the treasury the $250.00 which it now seeks to recover. On these facts the distilling company insists that it should be granted a mandamus requiring the auditor to draw his warrant in its favor for the money paid in by it as a license tax when no such tax was due, as provided by section 162, Kentucky Statutes, which reads:
“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. ’ ’
It appears the language of this section needs little or no construction to bring out and make manifest the purpose of the lawmakers. 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 in favor of the party paying the same for such money so improperly paid. This is as plain as words can make a thought or purpose. By the statute it was intended to secure the return of money paid as taxes into the state treasury when no such taxes were in fact due, to the party to whom the money belonged and to prevent the state from converting to its own use and benefit money coming into the treasury through mistake, inadvertence, misconception of the law, or invalidity of legislative acts.
Judgment is therefore affirmed.