City of Lexington v. Woolfolk
City of Lexington v. Woolfolk
Opinion of the Court
Opinion of the court by
Reversing.
Tbe city of Lexington is attempting by these suits to enforce liens on appellees’ lots abutting certain of its streets for the cost of reconstructing the streets with brick at those points. The -circuit court dismissed the city’s petitions on demurrers.
Under section 3096, Ky. St., 1903, the general council of a city of the second class may by ordinance) provide for the reconstruction of its streets, upon the) petition of the owners of a majority of the property abutting the streets to be improved, or by a two-thirds majority vote of all the
The general council of Lexington ordained that the streets in question be improved by brick paving, having been petitioned by the owners of a majority of the front-foot property abutting the proposed improvement. The work was completed, inspected, and accepted; and the general council ordained that the assessment for these improvements btei paid on July 1, 1895, and annually thereafter for ten years. Appellees failed to pay their assessments in cash. In May, 1903, the city caused the tax bills,- including the assessments and'penalties and interest for each of the years 1895, 1896, 1897, 1899. 1900, 1901, and 1902, to be offered for sale at public outcry. There being no other bidder, they were bid in by the city. This proceeding was taken by the city under section 3187, Ky. St., 1903, governing the method of collecting “other city taxes and penalties.” Section' 3187 requires the delinquent tax bills to be advertised by the auditor and sold by the treasurer “on the first Monday in the next month” after they shall have come to his hands as such. The sale must be for cash “at public auction-to the highest bidder.” The auditor then returns the bills to the treasurer, who on said day offers them for sale as! advertised, if then unpaid. “If no one will offer the face of said bills for them, hd shall buy them in for the city.” The section continues: “The owner or owners of any lot,» the tax bill on which has been sold, -shall have the- privilege of redeeming the same within one year - of the day of sale by paying to the treasurer
It is the contention of appellees that the taxpayers — in these cases, the lot owners — have one year from the date ■of the sale of the delinquent assessments or tax bills in which to pay the amount, before a suit can be brought by the city to enforce the lien on the lots. 'The complication in the application of this provision is doubtless due to the fact that it is particularly applicable in all its features to the collection of ordinary tax bills alone. There is no provision in the chapter governing cities of the second class, other than in this section, for a lien upon specific property of the taxpayer to secure his city taxes. This lien is made to attach upon the sale of the tax bill as above provided. The purchaser of the tax bill at such sale acquires a lien on the lot described in the tax bill, but which he can not enforce for one year from the date of sale.. The section, contemplating that the city might buy in the bills, provides in, that event: “When the city shall buy in the tax bills, the city solicitor shall, by proper proceedings in the name of the city in the. circuit court, enforce a lien on the property for the city.” There is no expresa reference in the section or elsewhere to a time for redemption from the sale to the city. It is argued that the Legislature could not have intended that the taxpayer should have. one year in which to redeem from the sale if the bill was sold to any .other person, while, if it was sold to the city, there would be no time for redemption. The argument proceeds upon the theory that the Legislature was looking alone to the interests of the delinquent taxpayer. This supposition is erroneous. The first thing in view in enacting the section was to provide a sure and speedy method of collecting the city’s rev
It is argued that, the statute must be construed strictly against the city and in favor of the taxpayer; that all laws must be construed strictly against the taxing power. When the inquiry is, has the power to tax been granted, has it been exercised, or is its object a governmental purpose, such construction would doubtless be followed. But when the power exists, and has been exercised in the aid of a governmental function, why should the statute regulating the manner of collecting the tax be strictly construed? It is true, taxes are not debts. Yet they are obligations of the very highest nature, imposing at least a patriotic duty on the citizen to
From these sections, we conclude that the abutting lota were in lien to the city for these assessments,' which were due in installments, on July 1st, annually, beginning with the year 1895, but not including the penalties and compound interest to" be imposed where the sale of the tax bill' by the treasurer was to another'than the city; that the city, by buying in the tax bills, got no new or greater lien than it
Appellees contend that as the sale of the tax bills did not take place, nor were they advertised to take place, on the first Monday in the month after they had been listed with the treasurer, the city has acquired no rights by the sales, and that they were invalid. Authorities are cited to the effect that, when a tax sale is required to be had on a day named, a sale on any other day is void. But none of those authorities hold that for that reason the tax assessment is void, or that the lien is extinguished or lessened. The' argument followed out, would mean that these assessments can never be collected, for the first Monday of the first month after they became delinquent having passed without an advertisement or sale of the bills, they can never be legally offered, and therefore no right to sue to enforce the lien given by them can ever accrue to any one. If the sales had been made in fact, and some one had bought the tax bills, then this defense might be pertinent. But here there was no sale. There was merely an offer of sale. This section wherein the city is permitted to sell the delinquent tax bills is manifestly for the benefit of the city. Before another than the city could have the right to maintain a suit to enforce a lien on the lot, the statute giving such right must be shown to have been substantially complied with. If the city failed to offer the tax bill for public sale, the lot owner, has no ground of complaint. He still owes the assessment. It is past due and delinquent in every sense of the word. Section 3096 gave the lien, and the right of the city to sue
Yery earnest complaint is made by appellees of the form and sufficiency of the petitions. It is argued that the general demurrers were properly sustained on this ground, if no other. The pleader, in setting out the various ordinances and steps by which the city obtained the lien on appellees’ lots for the cost of the improvement of the abutting ways, did not plead the ordinance at length. The following from, one of the petitions will serve to illustrate the matter complained of: “High street. . . is one of the public streets of the plaintiff. That the owners of a majority of the front or abutting feet of the real estate abutting on said street petitioned the general council to provide for the reconstruction of said street with brick. That thereafter the general council (two-thirds of the members elect in each board voting therefor) passed Ordinance No. 422, which was duly approved and published in the official newspaper (a copy of said ordinance being filed herewith, marked 'Exhibit A,’ and made a part hereof, the same as if fully written herein), directing the roadway of the street aforesaid to be constructed by blocks with brick. That the city engineer, in accordance with the directions contained in said ordinance, prepared accurate profiles, plans, specifications, and estimates for the reconstruction of said street with brick, which were accepted and approved by the general council! by Ordinance No. 453, which was approved and published in the official newspaper (a copy of said ordinance being filed herewith)” —and so on, setting out similarly every essential step required by the statute to be taken to make a valid contract
The judgments sustaining the demurrers and dismissing the petitions appear to us to be erroneous, and are, for the reasons above stated, reversed, and the causes are remanded for further proceedings consistent herewith.
Petition for re-hearing by appellee overruled.
Whole court sitting.
Reference
- Full Case Name
- City of Lexington v. Woolfolk Same v. Hayman
- Cited By
- 2 cases
- Status
- Published