130 Ky. 705 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirming.
These two eases are so related that the decision of one involves the decision of the other, and they will therefore he considered together. John S. and Mary D. Wentz, who are residents of Philadelphia,
“Supervisors’ Notice.
“John S. and Mary D. Wentz, you are hereby notified that the board of supervisors of Harlan county have raised your property from $64,465.00 to $167,-609.00, and will reconvene at the courthouse in Mt. Pleasant, Harlan county, Kentucky, on January, the 21, 22 and 23 to hear any proof you may have to offer.
[Signed] S. J. C. Howard, Supervisor.
“Sherman Blanton, Supervisor.
“Wilson Howard, Supervisor.
*708 “H. C. Lewis, Supervisor.
“Asher Skidmore, Supervisor.
“The Return.
“Executed by sending J. P. Bullitt, agent for John S. and Mary D. Wentz a true copy of this summons, this January 18th, 1907.
“[Signed] M; Gr. Ward, S. H. C.’>
About January 22, 1907, C. P. Blanton, the agent of John S. and" Mary D. Wentz, was in Mt. Pleasant, Harlán county, Ky. . The board of supervisors was then in session. Blanton admits that at that time he knew the raise had been made, but he- did not appear before the board to get a reduction. The Wentzes, through their agent, C. P. Blanton, tendered to the sheriff the amount of taxes based on the assessment made by the county assessor, but he declined to receive the spne. The action of M. G. Ward. Sheriff of Harlan County v. John S. Wentz, etc., is one wherein appellees seek to enjoin the collection of any taxes on the 12,893 acres of land based upon the valuation of the property in excess of the sum of $64,465; it being the contention, of appellees'that the raise from that sum to the sum of $167,609 was made by the board of supervisors without the notice to appellees, or their agent, required by the statute. In that action judgment was rendered in favor of appellees. and the sheriff of Harlan county appeals. After judgment in the above case the sheriff of Harlan county instituted an action against appellees for the purpose of having listed for taxation the 12^893 acres of land for the year 1907, on the ground that it was omitted property. Judgment was rendered against the Wentzes in the county court, and on appeal to-the circuit court judgment was rendered in
The statute (section 4122, Ky. St. 1903) requires that the notice of a raise in the assessment by the board of supervisors in case of nonresidents who have no agent or attorney in the State shall be made by posting the same in some conspicuous place on the premises. While it is true that.in an action to enjoin the collection of taxes based on a raise made by the board of supervisors without proper notice it is incumbent upon the party seeking the injunction to prove the absence of the notice required by the statute on the idea that the presumption is in favor of the validity of the board’s action (Bell’s Trustee v. City of Lexington, 120 Ky. 199, 27 Ky. Law Rep. 591, 85 S. W. 1081.), yet we are of opinion that where the owner exhibits the notice that was actually served, and this notice did not comply with the statute, this fact was sufficient to overcome the presumption that proper notice was given, and it was then incumbent upon the sheriff to rebut the presumption that this was the only notice given by showing that a notice was actually posted on the premises. This the sheriff failed to do. We therefore conclude that appellees’ proof of want of notice was sufficient. But it is contended by counsel for appellant that Blanton, the agent of the Wentzes, admitted that he knew the raise had been made by the board of supervisors, and that this actual notice took the place of that required by the statute. In 2 Cooley on Taxation, p. 484, the rule in regard to notice of an assessment where notice is required, or in regard to increase of assessment, is thus stated: “So all provisions designed to give him the opportunity of a review of the assessment, whether by the
In the case of Negley v. Henderson Bridge Co., 107 Ky. 414, 54 S. W. 171, 21 Ky. Law Rep. 746, this court said:. “Under these provisions of the statute, neither the assessor nor board of supervisors can increase the valuation placed by the taxpayer upon property listed by him without notice to such taxpayer of such increase. The purpose of these provisions is to give the taxpayer an opportunity to appear before the board, and be heard upon the proposed increase. # * * The increase in the valuation by the assessor of the property listed by the plaintiff, without the notice to it required by the statute, and the failure on his part to report the change made by him in plaintiff’s list to the board of supervisors are fatal to the validity of such assessment; and the chancellor properly enjoined the collection of the taxes on the difference between the valuation fixed by the taxpayer and the illegal assessment made by the assessor.” In the case of Mt. Sterling Oil & Gas Co. v. Ratliff, Sheriff, 127 Ky. 1, 104 S. V. 993, 31 Ky. L. R. 1229, this court in approving the rule above announced used the following language: ‘ ‘ The requirement of the statute as to the giving the notice to the taxpayer is mandatory, and, in the absence of the notice, the act of the board in assessing appellant’s property was and is. void. Hence appellant was hot required to appeal to the county judge for relief, but had the right to enjoin the collection of the tax illegally imposed.” Under our statute the bpard of supervisors is given large powers and a wide discretion. "Where its procedure is in conformity to the statute, its action is conclu
The next question to be considered is whether or not the assessment made by the assessor in the first instance, wherein the assessment was fixed at $64,465, was valid; and whether or not the land in question could be again assessed as omitted property. While it is true that the letter of the agent Blanton did not comply strictly with the provisions of the statute, we do not think this had the effect of rendering the assessment invalid. Under our statute the assessor has the power to obtain information from other sources, and to make an assessment without reference to the list given in by the taxpayer. When the assessment is made by the assessor, the owner cannot attack the assessment, nor can the taxing power repudiate it. If, as contended by counsel for appellant, the assessment is invalid because appellees’ agent did not comply with the statute in listing the land, this would open the door for the escape of taxation by all those who failed to comply with the statute. If there was a valid assessment made by
For the reasons given, the judgments of the trial court in both actions are affirmed.'