
    CASE 1. —ACTION BY THE MT. STERLING OIL & GAS CO. AGAINST C. S. RATLIFF, SHERIFF, TO ENJOIN THE COLLECTION OF CERTAIN TAXES.
    October 30.
    Mt. Sterling Oil & Gas Co. v. Ratliff, Sheriff
    Appeal from Bath. Circuit Court.
    A. W. Young, Circuit Judge.
    Judgment for defendant, plaintiff appeals.
    Reversed.
    1.. Taxation — Liability of Property — Statutory Provisions — Interest in Oil Privileges. — Under Ky. Starts., 1903, section 4039, providing that it shall he the duty of all persons owning any interest in coal oil privileges in the State, if they should reside out of the State, to list the property for taxation in the county where situated, where the owner of an oil leasehold assigned it1 to another and reserved as a part of the consideration therefor a fraction of the oil to he produced therefrom, the interest reserved was property subject to taxation in the county wherein the oil wells were situated within the intent of the Legislature, even though the owner was a non-resident.
    2. Same — Assessment—Notice.—Ky. Stats., 1903, section 4122, providing that the sheriff shall notify all taxpayers whose lists1 have been increased or assessed by the hoard-- of supervisors- of tax, is mandatory; and, where an original assessment of omitted property is made hy rt)he board without notice, it is void, notwithstanding section 4128, declaring that mere informalities or irregularities on the pairt of the board shall not invalidate an assessment.
    
      3. Same — Remedies pf Taxpayer — Injunction.—Where a tax is imposed by the board of supervisors of tax without notice to the taxpayer, as required by Ky. Stats., 1903, section 4122, the collection of the tax may be enjoined, notwithstanding section 4128, providing that' a taxpayer aggrieved by the action of the board may apply to the county judge for redress.
    ROBERT H. WINN, attorney for appellant.
    J. J. NESBIT, attorney for appellee.
    (No briefs — record misplaced.!
   Opinion of the Court by

Judge Settle

Reversing.

Appellant, an Indiana corporation, owned prior to September 1, 1905, certain oil leaseholds in Bath and other counties of Kentucky, which it on that date sold and assigned to Guffey and Galey, Pennsylvania oil men, for a certain consideration based upon a test of production, and then paid, and an additional consideration expressed in the following clause of the written contract between the parties, viz.: “The second parties covenant to render and deliver to the first party, in its crude state, delivered in tanks or pipe lines in the vicinity of the wells an equal one-sixteenth of all the oil produced and saved after this date from any of said leaseholds this day assigned, after .deducting the royalty to be rendered to the lessor. The said second parties shall, until the first party elects to take and dispose of its oil, sell the oil of the first party with their oil and account for and pay to the said first party quarterly for the oil so sold in the crude state at the wells during the preceding three months; the minimum price to be not less than twenty cents per barrel.” The New Domain Oil & Gas Company subsequently became assignee of the rights of Guffey and Galey under the contract in question. In January, 1906, the board of supervisors of Bath county assessed for taxation as of September 1, 1905, in the name of appellant as owner, its interest in the Bath county oil leaseholds reserved in the assignment to Guffey and Galey, styling it upon the assessor’s book, “Present value of annuities and royalties,” and fixed the value thereof at $20,000, the tax upon which went into the hands of' appellee as sheriff of Bath county for collection. The payment of this tax was demanded by the sheriff of appellant, who refused to pay it, and immediately thereafter it brought this action in the Bath circuit court against that officer to enjoin its collection. The petition rests appellant’s claim to the relief asked on two grounds: (1) That a right to receive one-sixteenth of the oil produced from a • well, the owner of the right having parted with his leasehold and not being engaged in the production of the oil, is an intangible personal asset, the situs whereof for taxation follows the domicile of the owner; (2) that the assessment by the board of supervisors, having been made without notice to appellant, is void.

The first contention is manifestly unsound. "Whether the right reserved to appellant by the lease contract to one-sixteenth of the oil produced by its assignee be called personal property, a chattel real, incorporeal hereditament, or privilege, it is property and as such subject to taxation, under section 4039, Ky. Stats. 1903, which provides: “That it shall be the duty of all persons owning any real or personal property, mineral rights or standing (branded) trees of any kind whatever on the lands of another, or any coal oil or gas privileges by leases or otherwise, or any interest therein, in this State, other than the county in which the said owners reside, or if they should reside out of the State, to list the property for taxation, personally or by an authorized agent, in the county where situated, at the same time and in the same manner as is now required by law of resident owners, or to file a descriptive list of the same between the 15th day of September, and the 15th day of October in each year,'with the county court clerk" of the county where said property, is located, fixing a fair cash value of the same, and giving the nearest resident thereto, and the number of the magisterial district in which same is located. Whoever shall wilfully fail or refuse to comply with the provisions of this act shall be fined not exceedng $50.00 to be recovered by an indictment in the county in which the same is situated; provided, that no fine shall be assessed when the property is assessed and taxes paid by the owner or his agent. That all actions and prosecutions now pending, .in .which judgment of conviction has not been rendered, shall proceed under the provisions of this act. ’ ’ By the use of the words “any coal oil or gas privileges by lease or otherwise, or any interest therein,” the Legislature intended to make just such an interest or privilege as appellant owns in the oil produced, or a right to a part of what may be produced by its assigns, property, and to tax it as such in the county where it is situated, the privilege exercised, or the benefit received, though the owner be a nonresident of the county or of the State. Commonwealth, by etc., v. R. G. Dun & Co., 126 Ky. 108, 102 S. W. 859, 31 Ky. Law Rep. 561.

Appellant’s second contention presents a more serious obstacle to the right of the sheriff to proceed with, the collection of the tax assessed against it. It is admitted that no notice of the assessment was given appellant, but insisted for appellees that none was required because the assessment was an original one. In other words, appellee contends that the statutory requirement as to the giving of notice to the owner of the property sought to be taxed has no application to an original assessment made by the board of supervisors, but does apply to an increase made by it in the valuation of property previously assessed. The language of the statute does not sustain appellee’s view of the law. While the board of supervisors seem to be empowered to assess all property that may have escaped the notice of the assessor, even though the name of the owner be undiscovered, it is without authority either to assess or increase an assessment of property without notice to the taxpayer, for we find that section 4122 of the statute, which defines the powers of the board, provides: “The sheriff shall notify all such taxpayers whose lists have been increased or assessed by the board, and also notify them of the time to which the board adjourned. Notice to non-residents or infants shall be to their attorney or agent or guardian; if none in the county, by posting in some conspicuous place on the premises. The sheriff shall be allowed a reasonable condensation for his services to be paid out of the county levy.” The succeeding section, 4123, provides for the re-assembling by the board to hear the complaints- of persons whose property it may have assessed or increased, and indicates the manner in which such complaints shall be disposed of. We fail to see that section 4122, in its requirement as to the notice to be given the taxpayer, makes any distinction between an orginal assessment and an increase of assessment. In either case, the purpose of the notice is to give the taxpayer an opportunity to appear before the board and be heard upon the proposed assessment or increase. If entitled, therefore, to notice and a hearing on the question of whether an increase shall be made in the value of thecproperty listed by him, he is equally entitled to a hearing on the question of whether property which he has failed to list shall be assessed at all. But we regard this question as having practically been settled by this court in the case of Negley v. Henderson Bridge Company, 107 Ky. 414, 54 S. W. 171, 21 Ky. Law Rep. 1154. The question presented in that case was whether an increase in the valuation of the bridge company’s property, which had previously been assessed, could be made by the board of supervisors without notice to the company. The opinion after commenting upon the provisions of section 4122 of the statute, supra, says: “Under the provisions of the statute, neither the assessor or board of supervisors can increase the valuation placed by the taxpayer upon the property listed by him without notice to the 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.” It is true that section 4128 declares that mere informality or irregularity on the part of the board of supervisors shall not invalidate an assessment, and. that a taxpayer aggrieved by the action of the board may apply to the county judge for redress; but the act of the board here complained of was not a mere informality or irregularity — it was an omission of duty fatal to the attempted assessment. The requirement of the statute as to the giving of 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 not required to appeal to the county judge for relief, but had the right to enjoin the collection of the tax illegally imposed.

We would not, however, be understood, as holding that the property in controversy should not have been assessed. It may yet legally be assessed and taxed in accordance with the provisions of the statute for the years appellant has failed to list and pay taxes upon it.

For the reasons given, the judgment of the lower court is reversed, and cause remanded, with directions to perpetuate the injunction as to the tax attempted to be collected by appellant by virtue of the illegal assessment of the board of supervisors.  