89 Ky. 531 | Ky. Ct. App. | 1890
delivered the opinion oe the court.
The Marion County Court, for the years 1882-3-4, levied an ad valorem tax for county purposes of thirty, forty and fifty cents, respectively, upon each one hundred dollars in value of taxable property in
The portion in Marion county of the two roads was duly assessed by the Board of Railroad Commissioners, and the assessment certified by the Auditor to its county clerk. The appellant paid a portion of the tax levied for county purposes for the years 1882-4. It also made payments upon the railroad tax for the same years, and if the portion of the Southern Division of the Cumberland and Ohio Railroad lying in Marion county was not liable for this last-named tax, as is claimed, but only so much of the Knoxville branch as is in the county, then the appellant overpaid this tax for the year 1882 by about five hundred dollars. This action was- brought to recover the balances of the tax for county purposes for 1882-4, and for that
The lower court held the county levies to be invalid; that the Southern Division of the Cumberland and Ohio Railroad was not subject to the railroad tax, and rendered a judgment for so much of this tax for the year 1883 as had been assessed against the Knoxville branch of the appellant, with interest from October- 1, 1883; and also for the year 1884, with interest from October 1, 1884, less what the appellant had paid on its railroad taxes for the last-named year. It refused to take any account of the overpayment by the appellant on its railroad taxes for 1882. The railroad company now complains of this refusal, and also because of the allowance of interest in the judgment. The county, upon the other hand, by' a cross-appeal, seeks to reverse the ruling below as to the taxes for county purposes, and the alleged non-liability of the Southern Division of the Cumberland and Ohio Railroad for the railroad taxes.
Taxes are not debts within the legal meaning of the term. They are not based upon contracts, either express or implied. They come upon the tax payer in inmtwm. Their payment is a duty which the citizen owes to the State in return for the protection it affords him and his property. Interest is not allowable upon them by the general law. The power to impose it must come , from a statute. Although they are payable at a certain time, they do not carry interest unless the statute says so. It, upon the contrary, provides fixed penalties for their non-payment.
If credit were given to the appellant upon the railroad taxes for 1888 for the amount overpaid on those ■ of 1882, it would practically be a recovery of taxes voluntarily paid by the appellant under a mistake.of law. These taxes could only be recovered by suit. Resort .to judicial proceedings was necessary. The •statute provides this mode of collection. If the appellant declined to pay, it necessarily followed. that it Avould have its day in court, where it could raise the question of its liability for them. It is a general rule that a voluntary payment by the tax-payer leaves Mm remediless. If, however, distraint or a summary mode of collection may be adopted, then the payment will not be regarded as voluntary, and the tax-payer may sue to recover taxes collected, without legal authority. A distinction is to be taken between cases where their collection can be enforced summarily, and those where resort must be had to the courts. In the • one case the tax-payer must submit to a levy upon his property or pay the money. In the other he has the opportunity to contest the demand in court, and if he does not choose to do so, and voluntarily pays it, he is remediless. Considerations of public policy require this rule, and the tax-payer can not complain
It has been repeatedly held by this court that a railroad can not be taxed by a county to pay the subscription of the same county to aid in its construction. (Clark County Court v. E., L. & B. S. R. R. Co., 7 Ky. Law Rep., 761; Louisville and Nashville Railroad Company v. Hopkins County, supra.) If this could be done, it would result that the county would only pay a portion of its debt. It would be quasi repudiation. The creditor would be made by its debtor to pay a part of its own demand. The railroad would, in fact, get but a part of the sub scription, and the obligation of the contract would pro tanto be impaired. It matters not that the county issued bonds in payment of the subscription. It now proposes to tax the road to pay these bonds. This is the same as if it proposed to tax the road to pay the subscription. It would be doing it in effect. The Louisville and Nashville Railroad Company is not the owner of this Southern Division of the Cumberland and Ohio RaiUoad. If it had purchased it, and then completed or added to it, a different case would be presented.' As this record shows, however, it is merely its creditor, and is operating it under a lease. The road, including all the improvements which have been put upon it, belongs to the Southern Division of the Cumberland and Ohio Railroad Company. It is true the county subscription was to
There is no law authorizing an ad valorem tax for county purposes generally. The law provides for a head tax only for these purposes. Nor is there any act of the Legislature to this effect as to Marion •county. It is only allowable for specific purposes. If a municipal corporation imposes taxes, it must be able to show due authority to make the demand. If a tax be levied for a specific purpose, it must appear that it was levied for that purpose. (Price v. Trustees of Bellevue, 1 Ky. Law Rep., 276.) The tax
The judgment upon the main appeal is reversed, so-far as it allows interest. It is affirmed upon the cross-appeal, and cause remanded for further proceedings consistent with this opinion.