127 Ky. 667 | Ky. Ct. App. | 1907
Lead Opinion
Opinion op the Court by
Affirming.
These four appeals, presenting a common question, are heard together. They involve the constitutionality and construction of article 3 of the revenue law passed by the General Assembly of 1906. Laws 1906, p. 115, c. 22. For a full study and understanding of that article, it is set out complete, and is as follows:
“Section 1. It shall be the duty of every owner:-or*672 claimant of land to pay all the taxes which have been assessed, and which should have been assessed, against him, and those under whom he claims, as the owner or claimant of said land as of the 15th day of September, 1901, the 15th day of September, 1902, the 15th day of September, 1903, the 1st day of September, 1904, and the 1st day of September, 1905; and if the said owner or claimant, or those under whom he claims, has failed to list said land, or any part thereof, for taxation, as of said dates, or any of them, it shall be his duty to have same assessed . and listed for taxation, in the manner and within the time hereinafter provided, as of each of said dates for which -the assessment has been omitted, and to pay the taxes, interest and penalties thereon as herein provided. The fact that said land has been listed for taxation, or the taxes have been paid thereon by another claimant, shall not relieve against the duty herein imposed. If any such owner or claimant, or those under whom he claims, has failed to list such land for assessment and taxation, as of any three of said dates, or has failed to pay the taxes charged, or which should have been; charged against him, or those under whom he claims, as the owner or claimant thereof upon said dates, for any three of the years for which said assessments were or should have been made, said owner and claimant and those under whom he claims are hereby declared to be delinquent; and such failures, or either of them, shall be cause for the forfeiture and transfer to the Commonwealth of his said claim and title thereto, in a proceeding to be instituted for that purpose, as hereinafter provided. But said cause for forfeiture shall be extinguished if said owner or claimant, his heirs, representatives, or assigns, shall, within the time and*673 in the manner in this article provided, cause said land to be assessed for taxation, and, on or before March 1,1907, pay the taxes charged, and which should have been charged against him, or against those under whom he claims, as the owner or claimant thereof, for each and all of said five years, for which' he or those under whom he claims are delinquent, together with the interest and penalties provided by law in case of the redemption of land sold for the non-payment of taxes.
‘ ‘ See. 2. The ascertainment of the amount of taxes unpaid and the assessments required by the preceding section shall be made by the county court of the county wherein the land lies, upon the application of said owner or claimant, by a petition verified by himself or his agents, filed in said court on or before January 1, 1907, in which the land, sought to be charged shall be described, so as to be identified, and the years for which it was not listed and the years in which the taxes were not paid shall be stated, and in which also shall be stated the grant under which he claims, if he derives title from a grant, and the instrument through or the manner in which the title devolved upon him. Said application shall be set for hearing upon a day to be fixed by the applicant, not less than ten nor more than twenty days after the filing of the petition, of which he shall give at least ten days ’ written notice to the county attorney, whose duty it shall be to attend said hearing! and represent the State and county; for which service he shall receive as compensation ten per centum of the amount ultimately collected by sale or otherwise, by virtue of such delinquency. It shall be the duty of the county court' to decide upon said application in a summary manner, upon such evidence as may be offered, hav*674 ing due regard to the value of adjacent property as of said dates, and to ascertain the amount of unpaid taxes which the applicant and those under whom he claims should have paid for any and all of said years, whether assessments were originally made as of said dates or not. Upon finding the amount, the court shall also ascertain the proportion of such taxes duo for county and State purposes at the rates fixed by law for such years; and shall cause a record of the findings to be made on the order book of the court, and certified to the Auditor of the State'and county clerk. Should the court find that the land had been assessed against such owner or claimant, or those under whom he claims, as of any said' dates, it shall accept such assessments as a basis upon which to ascertain the amount of unpaid taxes for the year such assessment may have been made. Either the petitioner or the Commonwealth, feeling aggrieved by the finding of the county court, shall have the right to take an appeal, within thirty days after the entry of the findings of the county court, to the circuit court for said county, in the manner that other appeals are taken, except that no bond shall be required of the-Commonwealth. It shall be the duty of the circuit court to hear and' determine said application de novo, and to give it precedence over all other civil business in said court. The finding of the circuit court shall be conclusive and not subject to appeal. A copy of the findings shall be certified to the Auditor of the State and to the clerk of the county court. As soon as the time for appealing from the finding of the county court has expired, if no appeal is taken, or as soon as the final order of the circuit court is entered, if an appeal is taken, thé obligation of said owner or claimant to ]Iay the taxes therein called for,*675 with interest and penalties, as provided by law for the redemption of land sold for the nonpayment of taxes, shall be complete; and the same shall be paid to the sheriff of the county within thirty days thereafter. Provided, however, that if in a proceeding hereunder begun within the time allowed, the amount payable by the delinquent shall not be finally determined until within less than thirty days before March 1st, 1907, or until after said date, then the right of forfeiture as set out in section 1 of this article shall not be complete in the Commonwealth, unless and until said delinquent shall have failed to pay said amount, interest and penalties, for thirty days after the entry of said order. Upon collecting said taxes, interest and penalties, the sheriff shall, after paying the costs of the proceedings and retaining the commission allowed by law for himself, pay over and account for the remainder to the Auditor of the State and to the county, in the same manner and subject to the same responsibilities of himself and his bondsmen as in the case of other taxes collected by him. Out of the amount so paid, there shall be paid- to the county attorney ten per centum thereof and an additional ten per centum to the Commonwealth’s attorney, should an appeal have been prosecuted to the circuit- court.
“See. 3. If any such owner or claimant shall fail to have said land assessed, or fail to pay the taxes charged, or which should have been charged against him, or those under whom he claims, as the owner or claimant of any such tract of land, as provided and within the time prescribed in section 1 and 2 of this article, together with the penalties and interest as provided by law, then.it shall be the duty of the Commonwealth’s attorney to institute in the circuit court*676 of the county in which said land or any part thereof, lies, a proceeding in equity, in the name of the Commonwealth of Kentucky as plaintiff against said tract of land, and the owners or claimants of said land as defendants, naming them; if their names are unknown to him, designating them as the unknown owners and claimants thereof for the purpose of declaring the title or claim of said defendants forfeited to this Commonwealth and selling same. The suit so instituted shall be proceeded with to final judgment in all respects as other equity causes so far as applicable. In addition to the requirements of the Civil Code of Practice respecting process and service thereof, notice shall be given of the pendency of said action by posting a copy of the petition at the front door of the court house, which shall be done by the clerk immediately after the petition is filed, and he shall show by endorsement upon the original petition the time at which said copy was so posted. The defendants shall not be required to answer until after the expiration of thirty days from the posting of said copy. And such copy when so posted, shall be deemed notice to all defendants of the pendency of said action and its object. The petition of the plaintiff shall allege, the facts constituting. the cause of forfeiture under the provisions of this article, and there shall be filed with it a copy of the grant or instrument upon which the title or claim sought to be forfeited is based; and no other title, claim or possession, or continuity thereof, whether owned or claimed by the defendant or by others, shall be forfeited' or in any manner be affected by said proceeding. . The prayer shall be for a judgment of forfeiture and sale of the title or claim in the petition described. The court shall render judgment in accordance with the pleadings,*677 exhibits and evidence adduced; and if it shall find that said title or claim, sought to be foreited is or has been subject to forfeiture under the provisions of this article, it shall render judgment declaring the same forfeited and the title thereto vested in the Commonwealth. Such judgment shall operate as a transfer to and vesting in, the Commonwealth of the said title and claim of each and all the defendants, and those under whom they claim, without execution of deed or other instrument. If the court shall find that the same is not subject to forfeiture under the provisions of this article, then it shall so adjudge and dismiss the petition of plaintiff. Judgments rendered by the circuit court under this article shall be conclusive as against all defendants, including infants, lunatics and married women, as to their title or claim derived through or under the grant, title or claim described in the petition; and said judgments and the proceedings upon which they are based shall not be subjected to the provisions of sections 391, 410, 414 or 574 of the Civil Code of Practice. Issues as to whether- or not the title and claim sought to be forfeited is or has been subject to forfeiture under the provisions of this article, shall be triable by jury; and the. judgment of the court shall be in accordance with the verdict, as in ordinary actions. Either party may prosecute an appeal from such judgment to the court of appeals within thirty days after the same may be entered; but if any such appeal be prosecuted, the transcript of the record shall be filed in the court of appeals within sixty days after the entry of said judgment; and the hearings upon appeal shall have the same precedence as other Commonwealth cases. No bond on appeal shall be required of the Commonwealth.
*678 “Sec. 4. If, before or during the term of the circuit court next succeeding the term at which a judgment of forfeiture may have been entered, as authorized by section 3 of this article, any of the said defendants in privity with the title so forfeited to, and vested in the Commonwealth, file his counterclaim in said action, accompanied by a bond, with good ami sufficient resident personal security, to be approved by the court, if in session, otherwise by the clerk of the court, conditioned to pay, and in all respects abide by and perform, the judgment' that the court may enter upon such counterclaim, and in said counterclaim offer to purchase back from the Commonwealth the title and claim in said action so forfeited to, and vested in, the Commonwealth, and praying to be allowed so to do, and exhibiting title thereto in himself, it shall be the duty of the court, upon proper pleadings as in other equity cases, and upon such evidence as may be adduced in the manner authorized by law,‘to ascertain and adjudge the amount of unpaid taxes, charged and that ought to have been charged against the defendant and those under whom he claims, as the owner or claimant of said land, for fifty years immediately preceding the filing of such counterclaim, and if .the court finds and adjudges that said defendant is the owner of the title so forfeited to and vested in the Commonwealth, to enter a judgment against said defendant for a sum equal to the amount of the unpaid taxes charged, and that ought to have been charged, against said defendant, and those under whom he claims as the owner or claimant of said land, for said fifty years, together with interest thereupon at the rate of 15 per cent, per annum from the time of the said unpaid taxes for said several years were due, and the costs of the proceedings,*679 including a reasonable attorney fee for the Commonwealth ’s Attorney, to be fixed by the court: Provided, that no person except a defendant, and no defendant, except as herein provided, shall be allowed to purchase back from the Commonwealth the title so forfeited to, and vested in it except such defendant as may, but for such forfeiture, establish in such proceeding a title thereto in himself upon which he could maintain an action of ejectment. If, thereupon, such defendant shall pay to the sheriff the amount of such judgment, it shall be the duty of the court to enter judgment retransferring to such defendant the title and claim so forfeited to, and vested in, the Commonwealth ; and said judgment shall have the effect of retransferring and vesting same in said defendant without the execution of a deed or other instrument. Should such defendant not thereupon pay said judgment, the court shall thereupon enter an order directing the sale of the said title and claim as in section 7 of this article provided, and the amount realized upon said sale shall be used in the payment of costs and commissions hereunder; and the remainder, if any, shall be paid to the State and county as provided in this article, and the counterclaim shall be dismissed. If the sale does not produce enough to pay the costs, an action may thereupon be maintained upon said bond for the costs, and reasonable attorney’s fee for the Commonwealth and county attorney, to be fixed by the court. If at any time during the pend-ency of said action it shall be made to appear that the bond theretofore tendered and approved by the court or the clerk is insufficient, additional security shall be required, and the failure to éxecute same upon being so required shall have the same effect as if no bond had been given originally, and the counter*680 claim shall be dismissed. Appeal may be prosecuted to the court of appeals from the judgment. of the circuit court under this section within the time and in, the manner and subject to all the' conditions provided for appeals in section 3 of this article, except that the judgment of the circuit court as to the amount thereof shall be final and not subject to appeal. All amounts paid to the sheriff under this section shall be by him received and paid out to the persons.entitled to the same as costs, and the remainder to the Auditor of the State and to the county in proportion to the amount due them for taxes anc penalties for the said fifty years, in the same manner and subject to the same responsibilities of himself and his bondsmen as in the case of taxes collected by him: Provided, that fees required by law to be paid to the Auditor shall be paid to him by the sheriff, and by the Auditor paid to the person entitled thereto. It shall be the duty of the county attorney to assist the Commonwealth’s attorney in all proceedings under _ this article for which he shall be allowed the per centum as herein provided. Certified copies of the judgments of the circuit court,- under sections 3 and 4 hereof, shall be recorded in the deed books of the county where the land, or any part thereof, lies, and indexed as deeds are required to be indexed.
“Sec. 5. Any owner or claimant who instituted a proceeding allowed by section 2 of this article, and who did not, within the time herein limited, pay the amount herein ascertained as charged or chargeable against him and those under whom he claims, as the owner or claimant of said land, shall not be allowed the right to purchase back, under the proceedings authorized by section 4 of this article, such title or*681 claim so forfeited to, and vested in, the Commonwealth.
“Sec. 6. All title and claim proceeded against under this article and forfeited to, and vested in, the Commonwealth and not purchased back by the owner or claimant ’thereof, as authorized in section 4 hereof, whether such forfeiture be for the past delinquencies or for future delinquencies as authorized under sec tion 10 hereof, shall he, and is hereby, transferred to, and vested in, any person for so much thereof as such person, or those under whom he claims, has had the actual adverse possession for five years next preceding- the judgment or forfeiture, under claim, or color of title, derived from any source whatsoever and who, or those under whom he claims, shall have paid taxes thereupon for five years in which such possession may have been or may he held; and in those in privity with such person, his heirs, representatives or assigns, as to the mineral or other interests or rights in or appurtenant to such land.
“Sec. 7. All title and claim to land transferred to, and vested in, the Commonwealth under the provisions of this article and not purchased back by the owner or claimant as provided by section 4, and not vested in the occupant, as provided in section 6, shall he sold to the highest and best bidder for cash in hand. Said sale shall he made pursuant to a judgment of the circuit court in said action, and shall he at public auction at the front door of the court house on the first day of some regular term of the circuit court, after notice of sale'shall have been advertised in the manner required by law in the case of sales of land under execution. The commissioner shall report the sale to the court for its confirmation, and, when confirmed, the court shall order the commis*682 sioner to make a deed to the purchaser. Such deed shall operate to transfer to said purchaser such title and claim to the land so forfeited and transferred to, and vested in the Commonwealth as remains in it after the operation of section 6 of this article, and shall so recite. The money realized from the sale shall he paid out and distributed as follows: First, to the payment of the costs of the suit, including commissioner’s fee as fixed by law and a reasonable atttorney’s fee, to be fixed by the court and paid in the manner provided by law; second, to the county and State the proportion to which each may be entitled, together with interest and penalty, as in this article provided; third, the remainder shall be paid over to the former owner or claimant or his personal representatives or assigns.
“Sec. 8. No action to enforce a forfeiture as authorized and provided in this article shall be instituted after the expiration of five years from the accrual of the right thereto'.
“Sec. 9. No owner or claimant of any land in this Commonwealth shall be allowed to prevent the operation of this article by the payment, after January 1st, 1906, of any amount less than the whole of the unpaid taxes, interest and penalties provided by law, that were charged, and that should have been charged against said owner or claimant of said land and those under whom he claims, as of each and all of said five dates, first mentioned in section 1 hereof; and where such payment is made after the passage of this act, the amount to bé paid shall be ascertained and payment made, as in this article provided. .
“See. 10. When, for any successive five years after the first day of August, 1906, any owner or claimant of or to any land in this Commonwealth*683 shall fail to list same for taxation and cause himself to be charged with the taxes properly chargeable thereon, or fail to pay the same as provided by law, then such failure shall be cause for the forfeiture of his title and claim thereto, and the transfer of the same to, and vesting it in, the Commonwealth of Kentucky. And wherever such failure exists, it shall be the duty of the Commonwealth’s Attorney to institute an equitable action in the circuit court of the county wherein the said land, or a part thereof, lies, for the purpose of declaring said forfeiture and vesting said title and claim thereto in the Commonwealth of Kentucky, and for the sale of such parts thereof as, under the provisions of this article, are liable to sale. Such actions -and proceedings pertaining thereto shall conform to the provisions of this article as far as the same may be applicable.”
It is also proper, and perhaps necessary, to set out here so much history of the State as will disclose the evil sought to be remedied by this act, in order that the legislative purpose may be more surely divined. "While prior to 1779 a considerable quantity of the wild lands of Virginia west of the Allegheny mountains had been appropriated by patents under the stimulus of enterprising adventurers and the policy of the colony to encourage emigration and the settlement of the vast wilderness territory then inhabited almost exclusively by savages, it was after the War of the Revolution, when the returning soldiers from the Continental army were to be compensated in a. measure by such favor as the State could bestow, that the real tide of emigration to the West set in. In 1779 Virginia established a land office, and created the office of Register of the Land Office. Most liberal inducements were offered settlers of “waste and un
“Sec. 7. Third, that all private rights and interests of lands within the said district, derived from the laws of Virginia prior to such separation, shall remain valid and secure under the laws of the proposed State, and shall be determined by the laws now existing in this State.”
“Sec. 9. Fifth, that no grant of land or land warrant to be issued by the proposed State shall interfere with any warrant heretofore issued' from the land office of Virginia, which shall be located on land within the said district, now liable thereto, on or*686 before the first day of September, one thousand seven hundred and ninety-one.
“See. 10. Sixth, that the unlocated lands within the said district, which stand appropriated to individuals, or description of individuals, by the laws of this Commonwealth, for military or other services, shall be exempted from the disposition of the proposed State, and shall remain subject to be disposed of by the Commonwealth of Virginia, according to such appropriation, until the first day of May, one thousand seven hundred and ninety-two, and no longer; thereafter the residue of all lands remaining within the limits of the said district, shall be subject to the disposition of the proposed State.”
“Sec. 14. And be it further enacted, that if the said convention shall approve of the erection of the said district into an independent State on the foregoing terms and conditions, they shall and may proceed to fix a day posterior to the first day of November, one thousand seven hundred and ninety-one, on which the authority of this Commonwealth, and of its laws, under the exceptions aforesaid, shall cease and determine forever over the proposed State, and the said articles become a solemn compact binding on the parties, and unalterable by either without the consent of the other.’ ’
At a convention called for the purpose of considering the proposal, the Compact was accepted by the district of Kentucky, as the new-territory was then called, on July 20, 1790. An act of Congress (Act Feb. 4, 1791, c. 4, 1 Stat. 189) provided for admitting the new State into the Union, which was consummated in June, 1792. The early records of this court, and of its predecessor, the Supreme Court of the District of Kentucky (Hughes’ Reports), abound in evi
Provision was at once made for transferring from the records of Viriginia the evidence of grants and conveyances of lands in the old district of Kentucky. They were required to be deposited as part of the records of the office of the clerk of this court at the seat of the State government, removed a week’s travel at that time from the State’s eastern domain Under the existing system, and for the supposed convenience of proposed settlers, the records of new entries
Notwithstanding that millions of acres have thus been reduced to that kind of actual possession and for such a period as to ripen into a perfect title in spite, of its original state, and that the population of this territory is now more than 300,000, there are many hundred thousand acres of these lands unfenced, whose stores of mineral and mantles of forest have remained in their natural state until the present hour. Commercial necessity and enterprise in recent years are opening this region to the markets, and what was once of small value has become enormously important and valuable. The holders of these old grants during all these years have taken no part in the development of the section where these lands lie, nor done aught to add to the State’s strength and stability in peace or in war. They have contributed nothing in clearing the lands for settlement. They have not tenanted them. They have not worked them. Every incentive of the government (save the pittance paid into the treasury for the warrants) which entered into the grant by the State has been withheld or disappointed by the grantees and those claiming under them. The State was then and is yet concerned in the subject of actual settlement, of homesteaders tied by interest and patriotism to the State’s wel
On June 26, 1792, the General Assembly of this State (1 Litt. Laws Ky. p. 63, c. 10) enacted a statute, by the fourteenth section (page 71) of which it was provided that all lands of which a list shall not be given in by the owner or proprietor to the commissioner on or before February 4, 1795, and on which taxes,, with interest, should not be paid, should be considered as, and actually be, forfeited to the State, and should be disposed of in such manner as should be directed by law. In 1801 the Legislature, extending the- time to save forfeiture, re-enacted the forfeiture clause. 2 Morehead & B. Ky. St. p. 1072. This court, construing that statute in 1822, held that the act did not, properly construed, dispense with an inquisition of office found, and that forfeiture was not
These latter acts were carried forward into the general revision of 1860 (2 Eev. Stats., pp. 103-106, cc. 58, 59), and by the act of 1860, (2 Eev. Stats., p.
Thus the matter stood when the. convention of 1890 met to revise the Constitution. This subject was deemed of enough importance to justify the creation of a special committee on “Land Titles.” Various proposals were made to the convention, among others one by the member from Wolfe, Powell, Menifee, and Montgomery, embodying substantially the same provision as is contained in the act which is the subject of this opinion. The result of the deliberations of the convention was section 251 of the present Constitution. The debates show that the delegates were alive to the very evil which is herein set forth, and which we will see was presented to the Legislature in 1906 for its consideration. Section 251 of the Constitution as finally adopted reads: “No action shall be maintained for possession of any lands lying within this State, where it is necessary for the claimant to rely for his recovery on any grant or patent issued by the Commonwealth of Virginia, or by the Commonwealth of Kentucky prior to the year one thousand eight hundred and twenty, against any
It will he remembered that in Virginia there was substantially the-same state of affairs as in parts of Kentucky,- for that region lying between the Allegheny mountains and the borders of Kentucky was of the same character of land, and had been appropriated by the same methods and under the same system, and at or about the same time, as had the lands in Kentucky. Naturally the same result ensued. In 1790 the Commonwealth of Virginia enacted a statute (13 Hen. Stat. at Large, p., 116, c. 5, sec. 5) by which title to lands not tax-paid for three years were “forfeited and vested in the Commonwealth.” The act was extendéd and re-enacted in increasing vigor in 1792, 1803, and 1810. In 1835 a still more drastic act was adopted (Hutchinson on Land Titles of Virginia., p. 62), the salient features of which are incorporated in the act of Kentucky now being investigated, except that in the Virginia act there is no provision for an inquisition of office, or its equivalent, as there is in .the Kentucky statute. This act has been before the Supreme Court of Appeals of Virginia a number of times; and has always been upheld as constitutional. Wild’s Lessee v. Serpell, 10 Grat. 408; Staats v. Board, 10 Grat. 400; Smith v. Chapman, 10 Grat 445, and Hale v. Branscum, 10
Thus we see that in 1906 the Legislature was confronted with this situation: Every evil that had existed from the beginning, threatening the stability of the land titles of a-large and important section of the State, was still unalleviated; that every legislative measure adopted during the past 115 years had been unavailing; that in spite of their public duty, and of the imperative command of the law and needs of the State, these claimants refused to respond, and were beyond the reach of the law then in existence; that the reason of the failure of the previous legislation upon the subject was those constitutional obstacles which had been pointed out in various opinions of this court and of the Supreme Court of the United States;' that similar conditions produced by the same cause had existed in two of our sister states; that they had gone further than Kentucky had in an attempt to relieve the situation; and that their efforts had been successful, and were without legal exception. The idea was not new to the Legislature that
Proceeding under article 3 of the act of 1906, appellant, claiming to be an owner of certain patents issued upon Virginia warrants prior to 1789, petitioned the county courts of Pike, Floyd, Knott, and Letcher to
The first question presented is, has the court jurisdiction of the appeals? The appellate jurisdiction of this court is regulated by statute. Only such matters as the Legislature may see fit to allow to be brought here on. appeal are cognizable by the court.- No person has an inherent right of appeal, however natural the notion that appellate courts should be open always, as are all other courts, to a litigant who conceives that his rights have been denied. But jurisdiction, and final jurisdiction, must be lodged some¡where. It has been left to the Legislature to do that. It is exceptional, indeed, when appeals are allowed in the-matter of tax assesments. The reasons are obvious. But they are sometimesr allowed by legislation. The language of the statute in question must be looked to, to see whether an appeal to this court is denied, in spite of the provision of the General Statute fixing this court’s appellate jurisdiction. A clause of a section of this article provides that the county court, “upon finding the amount, * * * shall cause a record of the findings to be made on the order book of the court and certified to the Auditor. Should the court find that the land has been assessed * * *' as of any of said dates.
The constitutionality of the act is questioned by appellant. The question must be decided, as, if it is unconstitutional, appellant would have had the right to list its lands under other provisions of law relating to the assessment of omitted property. If it is constitutional, then, unless appellant has complied with its terms, the action of the lower court
First. It is said to be void “because it takes from the assessor, a constitutional officer, the power conferred upon him alone by the Constitution and the laws pursuant thereto to assess all real estate. ’ ’ Section 227 of the Constitution creates the office of assessor, but does not define his duties. Section 172 of the Constitution requires all property not exempt from taxation to be assessed at its fair cash value, and provides for punishing ‘ ‘ any officer or other person authorized to assess values for taxation,” who shall willfully commit any error in the performance-of his duties. This seems to imply that the Legislature may provide other persons to assess property. It has always been done that way under the present and preceding Constitutions. Railroads, and other public service corporations, distillers, and dealers in rectified spirits are, and for a long time bank and trust companies were, assessed by “other persons,” than the county assessor. The latter cannot assess for any period than the current year. All omitted assessments are done by the county court, and have been for many years, certainly ever since the adoption of the present Constitution. This question was raised in Commonwealth v. E. H. Taylor, Jr. Company, 101 Ky. 325, 19 Ky. Law Rep. 552, 41 S. W. 11. and there decided adversely to this appellant’s contention.
Second. It is claimed that the act is local and special, and thereby violates section 59 of the Constitution. The only point urged in brief of counsel under this head is that “the act could not apply at the very outside to more than 20 or 25 counties in Kentucky.’ ’ Rut that does not constitute the legis
Third. It is claimed that the act violates section 171 of the Constitution, which requires that taxes shall be levied for public purposes only. The grounds of this objection are (1) that the provision for investing the occupying claimant with the forfeiled title shows that he is the intended recipient of the tax; and (2) that the provisions for the sale of the other forfeited lands, and the payment of some part of the proceeds to the officers who represent the State in the prosecutions, is also a provision for their private purposes. Counsel confuse the tax levied upon the lands and the disposition of the lands by the State after they shall have become forfeited. There is no pretense, and there can be no ground for any, that the act' provides any other use of the taxes that may be derived from assessments under the act than is
Fourth.- It is contended that the act violates section 51 of the Constitution, which requires that every legislative act shall relate to but one subject, which shall be expressed in its title. The title to the act is “An act relating to revenue and taxation.” If this article is bad for the reason last assigned, then much, if not most, of the existing revenue law of the State must fall for the same reason. A great many analogous instances might be cited from that act. But we will confine ourselves to a few. Railroads and other public service corporations are required to report certain information upon which their assessments are to be based by the State board of valuation and assessment. Their failure is penalized by fine of from $50 to $1,000 and a suspension of the corporate franchise. Similar penalties were upheld, and- a like act declared constitutional, in Louisville & Jeffersonville Ferry Co. v. Commonwealth, 104 Ky. 726, 20 Ky. Law Rep. 927, 47 S. W. 877. Distillers are required to furnish certain detailed reports, under a penalty
The last Constitution contained a similar provision to section 51 of the present Constitution. Under it, and, indeed, since the foundation of the Commonwealth, legislation has been enacted under precisely the same or equivalent title, in which equally as wide range of treatment has been indulged as in this act. In Phillips v. Cin. & Cov. Bridge Co., 2 Metc. 19, this court, commenting on that constitutional provision, says: “It should not be so construed as to restrict legislation to such an extent as to render a different act neeessary, where the whole subject-matter is connected and may be properly embraced in the same act.” And further: “None of the provisions of a statute should be regarded as unconstitutional, where they all relate directly or indirectly to the same subject, have a natural connection, and not foreign to the subject expressed in its title.” In L. & O. Turnpike Co. v. Ballard, 2 Met. 165, it was said: “A more lib
One complaint is that the measure is really not one of revenue, but of police, and that, therefore, it is not' germane to the title. There will be found in this general act many features which partake of police regulation, as well as of revenue. This is particularly true of the most of the article devoted to license, such as liquor licenses, peddlers, pawnbrokers, billiard tables, pool rooms, exhibitions of circuses, and thé like. Such measures might without any impropriety have been classed under either head, as they
Fifth. The act is claimed to be void, as violative of the Compact with Virginia. The Compact/ so far as here involved, has already been set out in the foregoing part of this opinion. As may be naturally expected, that instrument has been before this court a number of times, as well as before the Supreme Court
In Boone v. Helm, this court, speaking through Chief Justice Robertson, respecting the clauses of the Compact now in question, said: “All these expressions, taken together, mean, even according to their literal import, this, and only this: That, as to the validity and effect of such claims to land as then existed under the Virginia land system for the district of Kentucky, the rights of the claimants, as then existing, whether perfect or inchoate, should be tested by the laws under which they had been acquired, and that Kentucky should not abolish those laws, or enact and enforce any statute destructive of the validity of such of those claims as were, according to the laws existing when they were acquired, valid and available. Then, if any such claimant had a good entry, it — that is, the entry — should ever remain good as a valid and legal location. If he had a survey, good according to the law under which it was made, it — that is, the survey — should continue to be held as
In Kendall v. Slaughter, 1 A. K. Marsh. 378, involving the power of this State to change its limitation ■laws so as to give a shorter time than Virginia did at- the separation for bringing actions, this court said: “But whilst the legislative enactments of this country are by the Compact not permitted to affect the validity of those rights, we are of opinion that instrument should not be construed so as to preclude the Legisla
These views are fully sustained by the Supreme Court of the United States in Hawkins v. Barney, 5 Pet. (U. S.) 457, 8 L. Ed. 190. This action also involved the validity of a 7-year statute of limitation passed by Kentucky, and applied to a claimant under a Virginia grant, whereas the period of limitation in Virginia applicable to such actions at the time of the separation was 20 years. That court commenting upon the Compact, said: “It can scarcely be supposed that Kentucky would have consented to accept a limited and crippled sovereignty; nor is it doing justice to Virginia to believe that she would have wished to reduce Kentucky to a state of vassalage.
No one seems to have thought before that the power of the sovereign State of Kentucky was, or was intended to be, curtailed by the Compact with Virginia respecting the right of the former to proceed in her own way to coerce taxes from all property within her dominion for her support. The right to levy and collect taxes from the citizens or property within its jurisdiction is inherent in a State. As a part of its coercive process, it may forfeit the title of recusant taxpayers, or distrain their property without judge or jury. The Compact no more prevents the State from forfeiting the title of property whose owners refuse to list it and pay taxes upon it than it denies to this State the power to levy the taxes. Nor does the Compact affect at all the question, of procedure, jurisdiction of courts, the subsequent devolution of the title, requirements as to registry of subsequent conveyances, or the future duties and
Sixth. ’ It is. contended by appellant that the act in question is vicious because it seeks to extort axi •unlawful duplicate tax upon the same land. In the petitions of appellant is this paragraph: “Your petitioner is'advised by counsel, learned in the law, and believes, that iix all' of said years, and now, under .the laws of the Commonwealth of Kentucky, whenever •the’occupant or occupants of any part or parts of any ’of said-tracts have paid the taxes thereon, which those under whom your petitioner claims ought to have paid or ought to pay, the person so paying the tax shall be entitled to recover of the owner the amount 'of the tax so paid and interest, which shall continue á lien on the property upon which such tax was paid.” .The laws' of the' Coxmnonwealth referred to in the
There is no such connection or privity between adverse claimants of land as entitles one to recover taxes voluntarily paid by him on the land, although he in fact did not own it, from another who did own it, but failed to list it and pay the taxes. That which the State taxes is the property of the claimant — not the land. The right to possess, the title or legal title of dominion, is the property which the law protects, and is that property which it taxes. If two persons claim the same land, each having a title, but undetermined which is superior, shall the State stand back until their dispute is settled before it can exact a tax from the owners? For if one of them can lawfully refuse to list his claim, which is- his estate in the land, then the other could also. The State creates property — that is, the right to a thing* — by protecting
The act of 1906 provides: “It shall be the duty of each and every owner or «claimant of land to pay all the taxes * * * and to list said land * * * for taxation.” It also provides: “The fact that said land has been listed for taxation, or the taxes have been paid thereon by another claimant, shall not
Seventh. The act is claimed to infringe, both the federal and State Constitutions, in that it attempts, so it is argued for appellant, to deprive citizens of their property without due process of law. This proposition involves the power of the State to forfeit-lands of the owner or claimant because he failed to
That text was written before the opinion of the • Supreme Court in King v. Mullins, supra, in which,
In this connection we will notice another objection made against the statute, which is that it is an ex post facto law; that it punishes an act or omission by forfeiture of property which, when the act was omitted, was not so punishable by law. But such is not the fact. It is not the failure to list in the years 1901, 1902, 1903, 1904, and 1905 that works the forfeiture; but it is the failure after the passage of the act in 1906 to thereafter list the property for the five years named, and before January 1, 1907. It was within the power of the Legislature to forfeit for even one year’s omission.
Eighth. It is assumed in argument against the validity of the act that any retrospective statute is unconstitutional. But such is not the law. The Legislature may provide for retrospective assessment of property, and, if it has been omitted, ought to do so (Levy v. City of Louisville, 97 Ky. 394, 30 S. W. 973, 16 Ky. Law Rep. 872, 28 L. R. A. 480), as otherwise such property would enjoy an exemption to which it was not entitled, and thereby impose an additional and unjust burden upon other taxpayers. There is nothing in our Constitution which prohibits retrospective taxation. Nor is there in the federal
Ninth. There are a number of other objections mafte to the' statute by appellant, all of which may be grouped under the general complaint that it is harsh, oppressive, and unjust. Were these objections wel1 grounded, they would afford no basis for relief at the hands of the court. The policy of the Legislature may be looked into by-the courts for the purpose only of interpreting - statutes. If, then, they are found to be within the power of the Legislature to enact, the business of the court is ended. That the Legislature saw proper to enact a harsher remedy than it might have done; that it allowed the minimum of grace to the taxpayer; that it imposed most onerous penalties for his defaults; that it imposed even greater penalties than it does as against other classes whose fault may be no greater; that it does not even excuse infants, or married women, or persons laboring under disability, when, the general policy of legislation is to deal more indulgently with those classes— are all considerations of expediency which appeal to the good sense and the conscience of the legislators. It is not tolerable in our form of government, with its distinct separation of powers, that acts of the legislative branch should stand or fall according as they appealed to the approval of the judiciary; else one branch of government, and that the most representative of the people, would be destroyed, or at least completely subverted to the judges. We do not say
Finally. Did appellant comply with the-statute, so that the county court ought to have listed the lands? The petitions in these eases contained the same averment, of which the Pike county case is selected as a sample, as follows: “You petitioner claims to be an 'owner of the herein below described tracts of land, situated in the county of Pike, State of Kentucky, but mot of the improvements thereon, nor of the surface of certain parts of each tract as hereinafter stated, to-wit.” Then follows a description of land by calls and distances, which it may be assumed were sufficiently explicit to have located the several boundaries. The petition sets out the dates of issue and serial numbers, of the patents, and the instruments through which the petitioner derived title, namely, unrecorded deeds from Charles B. Hillhouse, and that the title of Hillhouse was derived by deeds and contracts to convey made by him with “others claiming by inheritance, by divers mesne conveyances, from those to whom said tracts of land respectively were granted by letters patent. ’ ’ The petition then states that the lands had not been assessed for any of the -years 1901 to 1905, both inclusive, either by the petitioner or by any one under whom it derived title, and
The defects of these petitions are: (1) They do not disclose the names of the owners, and therefore do not show the proper persons to be assessed. They show that appellant is only “an owner.” Of what part, or in what proportions, and by whom the remaining portions are owned, is not shown. (2) They do not “so describe the land proposed to be assessed” as that, in the language of the statute, “it can be identified” — the land to be assessed in not only specific tracts, so described in their entirety as to be susceptible of accurate location, but the interest of the listing owner, if he owns less than the entire tract, must be so described as that it may be identified. (3) Some of the patent boundaries described lie only partly in the county wherein it is proposed to list it. The petitions show that fact, but do not show where, in what part of the county, the parts to be assessed do lie; nor do they show where the excluded’parts which it is admitted do not belong to the petitioner lie, so as that the court could with reasonable certainty and intelligence’fix a valuation upon that part which is assessed. For lands which lay upon the main Big Sandy river, in Pike county, would have
Nor are these objections merely technical, interposed whimsically, so as to defeat the proposed listing of the land, and so as to work its forfeiture. They are each substantial, and have solid merit to support them. Only the title of the person assesed passes by a. tax sale. Johnson v. McIntyre, 1 Bibb, 295. If lands are assessed in the name of the wrong persons, no title passes by the tax sale. Wheeler v. Brammel, 8 S. W. 199, 10 Ky. Law Rep. 301; Spalding v. Thompson, 30 S. W. 20, 16 Ky. Law Rep. 836. The listing of partnership property in the name of an individual member of the firm is invalid to pass the partnership property under tax sale. Furguson v. Clark, 52 S. W. 964, 21 Ky. Law Rep. 697. A tax deed for 100 acres of 600 acres was held void in Humphries v. Huffman, 33 Ohio St. 395. The description in the deed must be one that identifies the land with reasonable certainty. Cooley on Taxation, 516; Gooch v. Benge, 90 Ky. 393, 12 Ky. Law Rep. 368, 14 S. W. 375. In the last-named case it was held that the description in the sheriff’s deed must be so accurate as to “enable the officer selling it and those disposed to purchase to find it and ascertain the character of it by the description given.” The description in the deed and the assessment roll must agree, or the title fails to pass, Carlisle v. Cassidy, 20 Ky. Law Rep. 562, 46 S. W. 490. A sale for taxes that
Wherefore we conclude that the county courts were right in refusing the lists, and the circuit courts ’ judgments so holding are each affirmed.
Dissenting Opinion
Dissenting-Opinion by
When an act is not punishable under the law in existence when it is done, it cannot be made punishable by the Legislature by a law subsequently passed ; and, upon like principles, where an act is punishable in a certain way when it is done, the Legislature cannot by a subsequent law add to the punishment or penalty. The Legislature cannot deny to any one the equal protection of the laws; and in my judgment article 3 of the revenue act of 1906 (Acts 1906, p. 88, c. 22) is void, both on the ground that it is ex post facto legislation, and that it denies to the holders of land titles referred to, the equal protection of the laws.
The act was approved March 15, 1906. It took effect about 90 days thereafter. The first section of the act makes the duty of every owner or claimant of land to pay all the taxes which had been assessed or should have been assessed against him, or those under whom-he claims, as of the 15th day of September, 1901, 1902, 1903, 1904, and 1905; and, if it had not been assessed for any of these years, the act made it his duty to assess the land and pay the taxes, interest, and penalty therein provided for. His
It is said that so much of the act as imposes the penalty for the past delinquency may be rejected, and that the balance of the act may stand; but this is not a case in which that rule can be applied, for the reason that the act forfeits the title of all persons who had failed to list their land for the years named, and the only way in which they can escape the forfeiture' is by paying the taxes, with interest and penalty. If they do not pay the taxes, interest, and penalty, the forfeiture stands. If that part of the act which provides for the extinguishment of the forfeiture is invalid, then there is no way in which the owner can escape the forfeiture. Besides, this is an essential part of the whole scheme of the act, and it cannot be presumed that the Legislature would have passed the act without this. The forfeiture of the titles of the owners is the purpose of the act. There would not be a clearer case of legislative intention to punish retrospectively. By the general law the person owning land at the time it should be assessed is not only liable for the taxes, but remains bound therefor; by this article the, present owner’s land is forfeited to the Commonwealth for the nonpayment of taxes by the former owner. By the general law, if the occupant of land pays the taxes thereon, he is entitled to recover of the owner the amount so paid, with interest, and has a lien on, the land therefor; by this article the fact that the land has been listed for taxation and the taxes paid- by the occupant does not prevent the forfeiture as therein set out. By the general law land may be assessed retrospectively at any time not later than five, years, but not to prejudice the rights
A reading of the article shows that it was a deliberate attempt on the part of the Legislature to deny the equal protection of the laws to the owners of the land titles referred to, and to provide as to the holders of these land titles an entirely different system from that provided for the holders of other species of property. It is therefor, in my judgment, void
For these reasons, I dissent from the opinion of the court.