
    Case 68 — TAXATION—
    Dec. 9.
    Negley v. Henderson Bridge Company, The.
    APPEAL FROM HENDERSON CIRCUIT COURT.
    1. Revenue and Taxation — Raising Assessment Without Notice. Under section 4047, 4068, 4053 of the Kentucky Statutes, 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.
    2. Injunction Against Illegal Taxes. — In such -a case a person against whom such illegal assessment has been made is entitled to an injunction restraining the collection of the tax upon an assessment which has been raised without notice to him.
    MONTGOMERY MERRITT for the appellant.
    1. The petition does not state a cause of action. There is no allegation of fraud and the only ground for the relief sought is over-valuation. Cooley on Taxation, secs. 748, 750, 775, 784, 529; High on Injunction, 494; 3 Ky. Law Rep., 156; 10 Ky. Law Rep., 25; 8 Ky. Law Rep., 706; 121 U. S., vol. 30 L. ed., 1000; 46 S. W. R., 57°6; 11 S. W. R., 1111. The petition does not state that the plaintiff did: not know that the 'assessment had beemraised and did not know of the time and place of the meeting of the board of -supervisors.
    2. On the question of res adjudicate: Henderson Bridge Co. v. City of Henderson, 18 Ky. Law Rep., 419; Union & Planters Bank v. -City of Memphis, 46 S-. W. R-, 561; City .of New Orleans v. Citizens Bank, 167 U. S., 371.
    YEAMAN & YE?AMAN for the appellee.
    1. The -petition stated a cause of action. The board of supervisors can not -change an assessment unless the evidence- be clear and unmistakable that the valuation is not a fair cash value. Ky. -Stats., sec. 4120; and the taxpayer is entitled to notice of any raise of assessment.
    2. Appellee was entitled by paying the tax upon the assessment as given in by it to- an injunction against the collection -of any further tax. Gates v. Barrett, 79 Ky., 295; Norman v. Boaz, 86 Ky., 557; Baldwin v. Hewitt, 88 Ky., 673.
   JUDGE BURNAM

delivered the opinion of the court.

This suit was instituted on the 25th day of November, 1896, to enjoin appellant, as sheriff of Henderson county, from the collection of. taxes upon the Henderson Bridge for the year 1896 upon any greater valuation than $649,-735.54.

The petition alleges that the plaintiff (appellee), as required by law, and at the instance- o-f the assessor of Henderson county, did, on the-day o-f December, 1895, return to s-aid assessor for taxation,- under oath, the fair cash value of that portion of said bridge within the State of Kentucky and county of Henderson at the sum of $649,735.54; that the assessor, after receiving said return, raised the valuation of the property to $1,000,000 without notice to the plaintiff at the time o-f such assessment, or at any other time, of the amount of such increase, nor did he notify it of the time and meeting of the board of supervisors, nor did he report to- the board of supervisors a list of taxpayers in the county whose tax lists had been added to, or increased by, him after receiving them from the hands of the taxpayer, with -a short statement; and it is alleged that the valuation made by the assessor is excessive and unequal, as compared with the valuation of other property in the county, and more than fifty per cent, above the fair cash value of the property assessed to plaintiff, and that the return of the assessor of the listing of said property, as above set forth, was not a valid assessment thereof; that the clerk of the county court derived no authority from such assessment to deliver the tax book to the sheriff with the plaintiff’s property aforesaid listed at $1,000,000, and that the defendant obtained by such book no authority to demand or collect from plaintiff any tax in excess of the valuation placed thereon by it, with the addition of one per cent, made by the State Board of Equalization.

It is further alleged that the defendant was threatening to sell plaintiff’s property under the aforesaid pretended assessment, and that this suit was instituted to enjoin him from collecting tax upon the property upon any valuation exceeding that placed by it in the list returned to the assessor, with the one per cent, addition made by the State Board of Equalization, and which it avowed it had already paid to the defendant as sheriff.

Section 4047 of the Kentucky Statutes requires all taxpayers to list all taxable property owned by them at its fair cash value, estimated at the price it would bring at a voluntary sale, on the 15th day of September of each year, under oath; and section 4058 requires that such lists should be made out upon schedules prepared by the. Auditor of Public Accounts, which are required to contain two columns. In one the person whose property is assessed shall fix the values, and in the other the assessor will fix what, in his judgment, is a proper1 valuation of the property. These schedules contain numerous' and searching interrogatories, intended to elicit full and accurate information as to every conceivable character of property owned by the taxpayers.

Section 4053 of the Kentucky Statutes provides that:

“The assessor, from his own knowledge, and from the statement of the person listing the property for taxation, and such other evidence as he may be able to obtain upon oath of witnesses sworn by him, shall fix the value upon all the estate listed with him for .taxation at its fair cash value, estimated at the price it would bring at a fair voluntary sale, and enter the same in his tax book in the proper name and title of things, together with the Christian and surname of the person, and other information' designated in the form of the tax book prescribed by law, giving also the aggregate value of the property assessed.”’ It further provides that: “If the value fixed by the assessor be greater than that fixed by the taxpayer, it shall be the duty of the assessor to notify the taxpayer, at the time of the assessment, of the amount of such increase, and of the time and place of the meeting of the Board of Supervisors, and that he -shall report to the Board of Supervisors a list of.all taxpayers in the county whose lists have been added to or increased by him after receiving them from the hands of the taxpayer, together with a short statement.”

Section 4120 defines the duty and power of supervisors, and provides that:.

“The Board of Supervisors shall make a careful examination of the assessor’s books and each individual list thereof, and may increase or decrease any list; but the board shall not reduce or raise any assessment unless the evidence be cléar and unmistakable that the valuation is not a fair cash value.”

Section 4122 makes it the duty of the sheriff to notify all such taxpayers whose lists have been increased or reduced by the Bo-ard of Supervisors, and to notify them of the time to which the board is adjourned.

And section 4123 provides, upon the reconvening of the board, they shall hear all complaints, and pass upon the assessment of all taxpayers.

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 to the taxpayer an opportunity to appear before the board, and be heard upon the proposed increase.

When the taxpayer fixes a valuation upon his property under oath, and returns his list to the assessor, he has the legal right to presume that this valuation is satisfactory to the assessor, unless he receives notice to the contrary. These provisions of law are mandatory upon the assessor and Board of Supervisors, and were intended to protect the taxpayer from arbitrary and illegal valuations of his property by these officers without notice.

•This court has, in a number of oases, held that “a mere opinion on the part of a taxpayer that an excessive valuation has been placed upon his property furnished no ground for enjoining the collection of taxes due to either the State or county.” (See Russell, Sheriff, v. Carlisle, 10 Ky. L. R., 25, [8 S. W., 14]; Ward v. Beale, 91 Ky., 60; [14 S. W., 967]; and Royer Wheel Co. v. Taylor Co., 20 Ky. L. R., 904, [47 S. W., 876].) But the right to have an injunction to restrain the collection of an illegal and void tax has long beén recognized in this State, upon the ground of the inadequacy of the remedy at law.

As was said in Gates v. Barrett, 79 Ky., 296:

“The officer, acting in good faith and under the color of right, is justified by his process, and is not liable as a trespasser; and, as suit would not lie against the State direct) y, the only complete remedy is by injunction,” — referring to High on Injunctions, sections 796, 801. And this doctrine has been reaffirmed in a number of cases. (Baldwin v. Shine, 84 Ky., 510; [2 S. W., 164]; Norman v. Boaz, 85 Ky., 557; [4 S. W., 316]; Baldwin v. Hewitt, 88 Ky., 673; [11 S. W., 803].)

The facts alleged in this petition were not put in issue, and Idle only question is, are they sufficient to support a canse of action?

In our opinion, they are sufficient. 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 pro¡>erly enjoined the collection of the taxes on the difference between tbe valuation fixed by the taxpayer and the illegal assessment made by the 'assessor.

For reasons-indicated, the judgment is affirmed.  