
    Case 14 — PETITION EQUITY
    April 24.
    Covington Gas-light Co. v. City of Covington, &c.
    APPEAL PROM KENTON CHANCERY COURT.
    1. Exemption op “machinery in manufactories” prom taxation does not exempt the pipes, lamp-posts and meters of a gas company.
    
      2. “Designation” by City Council of Taxable Property. — Under the provision in a city charter authorizing the taxation of such property as the “ city council may designate,” a designation of “any property of any kind subject to taxation under the laws of this Commonwealth,” is sufficiently descriptive.
    3. No portion of the property of a gas company can be seized and sold for taxes when the effect will be to destroy the public use. The Chancellor, in a proper proceeding, can require the company, through its chief officers, to pay the taxes into court, or place the property in the hands of a receiver for that purpose.
    4. Failure to Tax. — Estoppel—The failure of a city for many years to tax property can work no estoppel.
    5. To preserve the right to distrain for taxes under the provisions of the charter of the city of Covington, the tax bills must be returned by the collector, and then, to restore their efficacy, must be sent out at least once a year by the council.
    J. F. AND C. H. FISK FOR APPELLANT.
    1. The provision of the charter of the city of Covington exempting from taxation “ machinery in manufactories,” exempts the pipes, posts and meters of a gas company, these forming a part of the “machinery” of the company. (Commonwealth v. Lowell Gaslight Co., 12 Allen, 75; Frovidence Gas Co. v. Thurber, 2 R. I., 15; Commonwealth v. Byrne, 20 Grattan, 165; Phillips, &o., v. Winslow, Trustee, 18 B. M., 431, 445.)
    2. The assessment of appellant's property was illegal, for the reason that such property was not “designated” for taxation by the city council. The designation of “any property subject to taxation under the laws of the Commonwealth of Kentucky” was too general.
    3. The tax bills of the city of Covington, in order to retain their dis-training power, must be sent out “at least once in each year.”
    4. Municipal corporations can not distrain for taxes, unless the power be plainly and unmistakably conferred. (Johnston v. Louisville, 11 Bush, 536; Cooley’s Constitutional Limitations, pages 61, 192; Providence Bank v. Billings, 4 Pet., 514; Fleckner v. Bank of U. S., 8 Wheat,, 338; Reed v. Toledo, 18 Ohio, 161; Rochester v. Collins, 12 Barb., 559; Dillon’s Municipal Corporations, 3d edition, volume 1, section 336, and volume 2, sections 768, 818 and 820; Caldwell v. Rupert, 10 Bush, 182; Kuiper v. Louisville, 7 Bush, 599.)
    5. Injunction is the proper remedy in all cases of illegal, erroneous or void taxation. (Osborne v. U. S. Bank, 9 Wheat., 838; Dudley v. Trustees of Frankfort, 12 B. Mon., 615, 616; Dows v. City of Chicago, 11 Wall., Ill; Applegate, &c., v. Ernst, &e., 3 Bush, 650; L. & N. R. R. Co. v. Warren County Court, 5 Bush, 247; E. & P. R. R. Co. v. Trustees, &c., 12 Bush, 230; Bullitt’s Civil Code, sections 1, 6, 271, 275; Gates v. Barrett, &e., 79 Ky., 296, 297; Dumesnil v. Dupont, 18 B. Mon., 804; Hahn & Harris v. Thorn-berg, &e., 7 Bush, 404; Trigg v. Trustees of Glasgow, 2 Bush, 597.)
    
      ~W. K. BENTON for appellees.
    Brief not in record.
   JUDGE PKYOK

delivered the opinion of the court.

This is an action by the Covington Gras-light Company against the city of Covington, enjoining the collection of certain tax bills against that company, on the ground that the property assessed is exempt from the payment of taxes, and if not, that the officer had no power to distrain the goods of the appellant for the taxes unpaid.

' Section 1 of the act to amend the charter of the city of Covington, approved April 9, 1873, empowering the council to levy taxes, etc., provides that churches, school-houses, colleges, and the grounds attached thereto, and dedicated solely for the use thereof, cemeteries, raw material held by manufacturers for the purpose of being manufactured in the city, machinery in manufactories, etc., shall be exempt from taxation.

The gas company owns real estate upon which has been erected several buildings used for the purpose of manufacturing gas, with all the machinery and appliances attached for that purpose, and on this real estate, except the machinery, etc., the company has paid the tax.

The question involved in this case — the one, at least, of the greatest importance — is as to what constitutes the machinery for manufacturing gas, or the machinery in a gas manufactory. It is insisted, and was so adjudged by the court below, that the pipes leading from the realty or factory of the appellant, by which, when the gas was made, it was conveyed to various parts of the city for the use of the inhabitants, was not a part of the machinery of a gas manufactory, nor were the lamp-posts and meters embraced by the word machinery.

It is true that the pipes, lamp-posts, etc., belonged to the gas company, and in one sense were attached to or a part of the main works, and are necessary to enable the company to perform its contract with the city and supply a public necessity.

The right to lay down its pipes and to use the •streets of the city for that purpose has been expressly granted under legislative authority; but with the pipes taken from the streets or the meters and lamp-posts removed, the manufacture of gas could still be carried on, not with much profit, however, unless the city furnished its own pipes, meters and lamp-posts. The means of conveying the gas through the city is for the purpose of furnishing it to consumers, and not manufacturing it.

The street railway is a franchise on the surface of the ground granted for the transportation of passengers, and the track that runs from its machine shops or that of the steam railway might as well be said to constitute a part of the machinery of the company, as to hold that the franchise or pipes under the surface of the street, to enable the gas to be furnished in any part of the city after being manufactured, was a part of the company’s machinery in its factory. Each company owns its franchise, but to adjudge that the pipes are a part of the machinery in the factory, bringing them within the clause of the charter exempting it from taxation, would at best be a strained construction of the statute, and relieve the company of a share of the public burden that other corporations,, as. well as natural persons equally as meritorious- and with less profitable investments would be compelled to bear. The entire city of Covington would be converted into a workshop belonging in part, at least, to this corporation, if its pipes, lamp-posts, and meters are to be held as machinery within its. manufacturing establishment.

The tanks, as well as all the machinery on the realty belonging to the company, and used for the purpose of making the gas, were properly exempt from taxation under the charter of the city, but the pipes, lamp-posts, meters, etc., whether real or personal estate, were the subject of taxation, and not within the exemption.

That the city may have failed to tax this property for- years, when making its assessments, can work no estoppel.

Its neglect or want of diligence in ascertaining what property was liable to taxation can only affect the right of recovery when the statute of limitations operates as a bar, but no further; and if real or personal estate, the amount of levy being the same, no necessity exists for determining to which class, of property it belongs.

A further provision of the first section of the amended charter authorizes the levy “of an ad-. valorem tax on the real estate in the city, and on such personal estate, choses in action and moneys, within the city, or belonging to the inhabitants-thereof, as said city council may designate, and as-now are, or from time to time may be, taxable by the laws of this Commonwealth,” etc.

It is argued that because this particular kind of' property was not designated by the council as being-subject to the payment of the tax, that therefore it. was improperly assessed.

The designation made by the. council in the year-1883, as to the property to be assessed, was real estate, personal estate, debts, bills, bonds, etc., together with “any property of any kind subject to taxation under the laws of this Commonwealth,” etc., and the same designation made for the years 1881 and 1882, perhaps not quite so specific in its character. Either was sufficiently descriptive, and gave to the assessor full power to assess all the property owned by the inhabitants of the city, or located within the city, for the purposes of taxation.; and to require the council to point out or name every species of property so as to distinguish it from other property would be unreasonable, unless it could be assumed that the council or its members had taken an inventory of all the distinct kinds of property in the city.

Such was not the meaning or purpose of the act, and why it was so worded is difficult to perceive, unless to make this law, like all other tax laws, more difficult of construction or of administering than any other general law.

This brings us to the consideration of another provision of the charter affecting the remedy for the 'collection of taxes when imposed.

The collector of taxes is required to make out a •delinquent list by the provision of the third section •of article 5 of the act of 1850, and return it under •oath to the council, and this must be done after the fifteenth of July and before the first Monday in August; and section 5 of the same article provides “that it shall be lawful for the council to place the delinquent lists or tax bills, from time to time, in the hands of the collector until they shall be collected, and the right of distress shall remain if the same lists or tax bills are sent out at least once in each year; and the collector shall be liable for failing to collect and account for delinquent lists or bills in like manner as for original tax bills placed in his hands.”

There is no reasons for such a provision as this in the charter, unless the object is to require a return of the tax bills by the collector, and then, to restore their efficacy, they must be sent out at least once a year by the council. Instead of making the right of distress exist for one, two, three or four years, or as long as the taxes- remain uncollected, it was thought proper to insert this provision, that has the effect to confuse the provisions of the statute, and make that doubtful which should and was susceptible of being made plain and easily understood. Exoneration from taxes arises from the multiplied and ambiguous statutes on the subject, and those unwilling to assume their share of the' burden easily escape payment. The language of this section can not be misunderstood, and the right of distress is gone, except as to the period within which it may be adopted by reason of this plain provision of the statute.

This, however, is not a statute of limitation. The taxes may be collected by a suit in equity, and this is in fact the proper mode for so doing in a case like this, under an express provision of the law applicable to the city of Covington, conferring the jurisdiction upon the Chancellor. . The property of the corporation not used for, or essential to supplying, the wants of the city and its inhabitants, may be seized and sold for taxes; but the gasworks proper, and the pipes, lamp-posts and meters through which the entire city is furnished with light, must be in this particular regarded as an entirety, and no portion of it can be taken and sold, when the effect will be to destroy the public use or deprive the public of the benefits to be derived from it. The wants of the public require and demand that this franchise, although granted to a private corporation, shall be devoted to the public use. The Chancellor in a proper proceeding can require the company, through its chief officers, to pay the taxes into court, or place the property in the hands of a receiver for that purpose. (Louisville Water-works v. Hamilton, 81 Ky., 521.)

The property seized by the officer in this case, consisting of the office furniture, and indispensable, as is alleged, for the proper execution of the contract with the city, should not have been ordered sold, but the relief adopted as already indicated.

.The fact that the city •would have been compelled to construct gas-works, and if constructed, the works would have been exempt from taxation, or that the city has reserved the right to purchase the worlcs from the company, or that the company furnish gas to the city for a less price than to private consumers, affords no reason for exempting this property from taxation.

The Chancellor, as we construe the judgment below, as to all the property except the tanks, only perpetuated the injunction as to the remedy by distress, which is not final, but as to the tanks perpetuates the injunction as to any attempt to collect taxes thereon, which is final. He has only said, as to the tax bills not returned to the collector by the council within the year, the remedy by distress was improper.

It follows, therefore, that the pipes, posts and meters are liable to taxation, whether considered as real or personal estate; but it also follows that the remedy for a distress is improper when the seizure of the property of the corporation will destroy the public use, and for that reason the judgment below is reversed, with directions to restrain the city from selling the property levied on, so framing the judgment as to show that the remedy adopted is alone withheld, leaving the city to proceed, if it sees proper, in some other mode for enforcing payment. In all other respects we concur with the views expressed in the judgment appealed from.

The cause is remanded for proceedings consistent with this opinion. Reversed on original and affirmed on cross-appeal.

No constitutional question was raised or decided in this case as to the right of exemption.  