163 Ky. 467 | Ky. Ct. App. | 1915
Opinion of the Court by
Affirming.
These are appeals from a judgment of the Jefferson Circuit Court, Chancery Branch, Second Division, sus
Each of the appellants is a corporation claiming to be engaged in a manufacturing business. Acting under authority believed to have been conferred upon it by Section 170, Constitution, and Section 2980-A, Kentucky Statutes, the general council of the city of Louisville, in July, 1908, adopted an ordinance exempting manufacturing establishments from municipal taxation for a period not exceeding five years, as an inducement to their location in the city of Louisville. Acting upon the theory that this exemption applied to all taxes levied by the city, numerous manufacturing establishments, including the appellants, which had applied for the exemption thus allowed, for years escaped all taxes levied by the general council, municipal as well as school taxes; but in 1913 the board of education of the city of Louisville, contending that its general council had no right under the Constitution, statute or ordinance referred to to exempt these manufacturing concerns from school taxes, even though it might have had the right to grant such exemption from municipal taxes, demanded of the city assessor that he assess for the years 1908, 1909, 1910, 1911, and 1912, retrospectively, for school purposes, the property of these manufacturing corporations, including the appellants.
The assessor, however, declined to make the assessment, and in April, 1913, the board of education, by an action filed in the Jefferson Circuit Court, Chancery Branch, First Division, against the assessor of the city and two of the manufacturing establishments located therein, asked for a mandamus to compel that officer to assess for the use and benefit of the board of education the property owned by these manufacturing establishments subject to taxation for school purposes within the city of Louisville. The assessor, as well as the two
Following the decision of the Court of Appeals and the return of its mandate to the circuit court, the city assessor, on August 1, 1913, made the assessment required. Several of the manufacturing establishments involved, including the appellant, North Vernon Lumber Company, paid the taxes so assessed, and the latter company is now seeking to recover the tax paid by it for the year 1908. The appellant, Gibbs-Inman Company, refused, however, to pay the tax so assessed against its property for the year 1908, and it is now seeking to restrain by injunction the collection of the tax for that year.
The single ground on which appellants seek the relief asked is that the assessor was without authority in August, 1913, to make an assessment of their property for the year 1908, because the right to assess same for taxation and collect taxes thereon for that year was then barred by the five-year statute of limitations. So the sole question necessary to be decided by this court is one of limitation. In other words, the contention of the appel
The city of Louisville is authorized by Section 2980, Kentucky Statutes, to assess for school taxes the property of such manufacturing concerns as that of appellants, and Section 2906 of the statute requires' that the assessment shall be made by the city assessor. The school taxes are for State purposes, viz., public education, and are raised by a levy upon property within the municipality, in addition to school taxes raised by the assessment of the same property by the Commonwealth. In other words, the State has delegated to the municipality the power to -impose and collect taxes through its municipal officers and according to its own methods and system. The city is, therefore, authorized to assess and collect the school tax, though it be, in a sense, a State tax, at the same time and in the same manner that it assesses and collects taxes for municipal purposes; and as by Section 2996, Kentucky Statutes, municipal tax bills, though required to be made out and listed for collection by the third day of January of each year, and are then payable, do not, under the statute, in fact, become due until the first day of May succeeding, limitation does not begin to run until the first day of May, when the taxes are due. So, while the right to retrospectively assess .property omitted from assessment is given by statute to the city, such right must be exercised within five years; and we concur in the conclusion of the circuit court that the word “thereafter” as used in the statute relates to the year and the time of the year when the taxes, if assessed, would be due.
Section 2544, Kentucky Statutes, provides: “In all cases where the doing of an act necessary to save any right or benefit is restrained or suspended by injunction or other lawful restraint, vacancy in office, absence
It is apparent from the languáge of the foregoing section that the time during which the assessing officer refused to act or was necessarily delayed by litigation from acting, is not to be estimated in the application of the statute of limitations.
It is specifically alleged in the petition that “on or about the - day of February, 1913, the defendant, the Board of Education of the City of Louisville, made due demand on the assessor of the said city of Louisville to retrospectively assess all persons, firm's and corporations which had thus been attempted to be exempted from taxation for school taxes' for the years 1908, 1909, 1910, 1911, 1912. * * * And the said assessor denied and refused to make such assessment against any of the numerous parties thus exempt theretofore.”
It is manifest from these averments that in February, 1913,. the assessor refused to assess retrospectively the property of the manufacturing concerns claiming the exemption under the ordinance of the city, and that such refusal to make the assessment continued down to August 1, 1913, at which time it was made, covering the years from 1908 to 1912, inclusive. It is not material whether this delay resulted wholly from the refusal of the assessor to act, or in part from such refusal and in part because of the pendency of the mandamus proceeding in the circuit court and in this court. In either event the time thus consumed is not to be estimated in the application of the statute of limitations. The assessor had up to May 1, 1913, the right to make such retrospective assessment of appellants’ property for taxes for the year 1908, and the statute ceased to run when the assessor refused, in February, 1913, to comply, with the demand of the board of education that the assessment be then made, hence the five years within wMch he had the legal right to make the assessment for the year 1908 had not expired when it was made by him, August 1, 1913.
It follows, therefore, that neither the assessment for 1908 nor right of the city of Louisville to collect the taxes assessed against the appellants’ property for that year, is