
    CASE 25. — ACTION BY THE COMMONWEALTH AGAINST THE CHESAPEAKE, OHIO & SOUTHWESTERN R. R. CO. AND THE ILLINOIS CENTRAL R. R. CO. TO RECOVER A FRANCHISE TAX. —
    February 27.
    Illinois Cent. R. R. Co. v. Commonwealth
    Appeal from Franklin Circuit Court.'
    E. L. Stout, Circuit Judge.
    Judgment for plaintiff, defendant Illinois Central Eailroad Company appeals —
    Affirmed.
    1. Taxation — Railroads — Franchise — Assessment — Review — Estoppel to Dispute Liability. — Where a railroad corporation reported the value oí a certain line of road to the auditor for a certain year, and upon the report the value of its franchise was fixed, it cannot complain that it was not the owner of the line at that time, so as to defeat the payment of the tax.
    2. Same — Assessment — Conclusiveness. — Where the assessment of a franchise tax on a railroad has become final by failure of the railroad to object and seek a reduction, a member of the board of valuations and assessment after his term is out cannot affect its finality by testimony that the board did not consider the assessment a valid act or final.
    3. Same — Levy and Assessment — Agreements Not to Collect.— An agreement between the State board of valuations and ■ assessment and a railroad to release the railroad for taxes • for previous years on condition that it pay the taxes for the particular year is void where the assessment for the previous years have become final.
    4. Same — Collection—Limitation of Action. — Acts 1890 (Laws 1889-90, p. 149, c. 1763) authorizes the State to collect taxes by suit, but provided that no action shall be instituted or maintained “under the provisions of this act” upon any claim for taxes' that "might have been assessed” more than five years before the commencement of the same. By the act of 1893 (Laws 1891-92.-93, p. 331, c. 103, art. 8, section 3) a franchise tax on railroads was placed, and that act authorized the collection of the tax by action in the Franklin circuit court. The act of 1890 (Laws 1889-90, p. 149, c. 1763) did not confer jurisdiction on the Franklin circuit court, but left the venue of the suit to be that of defendant’s residence. Held, that an action in the Franklin circuit court to recover a franchise tax brought more than five years after the tax might have been assessed, though within five years from the time it wasi actually assessed, was not barred by the limitations provided by the act of 1890, since the limitations in the act of 1890 could not be made applicable to a suit which could not be brought under its provision.
    5. Limitation of Actions — Limitations Applicable — 'Statutory-Causes of Action1 — Franchise Tax. — Actions brought to recover franchise taxes under the act of 1893 (Laws 1891-92-93, p. 331, e. 103, art. 8, section 3) providing for such taxes and authorizing suits in the Franklin circuit • court for their recovery, in the absence of any special limitation in the act, are governed by the general law (Ky. St. section 2915), providing a limitation of five years on liabilities created by statute.
    TRABUE, DOOLAN & COX, HAZELRIGG, CHENATILT & HAZELRIGG, and J. M. DICKINSON for appellant.
    T. L. EDELEN, C. J. WHITTEMORE and R. B. FRANKLIN for appellees.
   Opinion of the Court by

Judge Hobson

Affirming-

This action was filed in the Franklin circuit court on December 5, 1902, by the Commonwealth of Kentucky to recover of the Chesapeake, Ohio & Southwestern Railroad and the Illinois Central Railroad the franchise tax of the Chesapeake, Ohio & Southwestern Railroad Company for the years 1896 and 1897 upon an assessment made on January 20, 1898, of which notice was given on that date and final notice was given on February 21, 1898. The circuit court dismissed the petition as to the taxes for the year 1896, hut gave judgment against the Illinois Central Railroad Company, for .the tax for the year 1897. From this judgment, .the Illinois Central Railroad Company appeáls'. - ■

The report upon which the tax for the year 1896 was assessed was made on September 15, by John Echols as the general manager of the Chesapeake, Ohio & Southwestern Railroad Co.’ The report upon which the tax for. the year 1897 was assessed was made by the Illinois Central Railroad Company, which had, in some way not explained in the record, come into possession of the railroad. The circuit court dismissed the petition of the Commonwealth as to the taxes for the year 1896-, for the reason that it did not appear .that the Illinois Central Railroad Company was then in possession of the railroad, and the report for that year was made by the general manager of the Chesapeake,' Ohio & Southwestern Railroad Company. It gave judgment against the Illinois Central Railroad Company .for the taxes, for the year 1897, because that company made the report upon which the assessment was based, and was then in possession of the railroad. In doing this the circuit court followed the opinion of this court in Southern Railway v. Coulter, 113 Ky. 657, 24 Ky. Law Rep. 203, 68 S. W. 873, where the Illinois Central was held liable on this, same assessment in a well-considered opinion by this court. The court said: “It is claimed on behalf of the appellant, Illinois Central Railroad Company, that, as it’ did not get possession of the entire lines until some timé in 1897, no franchise.tax should be assessed against it prior thereto. The .record, however, discloses,the fact that'it made reports to Auditor Stone, and-upon these reports he fixed the value of its franchise, commencing' with the year Í896, up to thé samé time the other assessments were made. We are therefore of the opinion that as they recognized themselves as owners of the line at that time, and made their reports and paid taxes to the State, it is now too late to raise that question We are not inclined to.hold that appellants necessarily bound themselves to pay the county franchise tax simply because they paid the State a franchise tax Neither have they any right to complain of the delay in enforcing the local taxes. They have simply had the use of the money without interest during these many years.”

The defendant introduced on the trial Samuel II Stone, who was the auditor of the State in the year 1898, and, as such, a member of the board who made the assessment upon which the suit is based. He testified on the trial, which took place in October 6, 1905, in substance that, although the board made the assessment and sent out notice of it and at the end of 30 days sent out the final notice of assessment, they were unwilling to force a conclusion because they were not sure of their ground; and in the winter of 1899 they had a consultation with the railroads of the State, and in this consultation in the year 1899 they agreed that the assessment then made against the Illinois Central Railroad Company should be in full not only for that .year but for the previous years It also appears from the proof that the assessment which was made in 1899 'was made in this way: The board took the total capitalization of the Chicago, S' Louis & New Orleans Railroad, and deducted from it the tangible property assessed against it, and the balance was the sum on which the Illinois Centra? Railroad Company paid a franchise tax for the year 1899. But waiving this, the testimony of the assessor who makes an assessment cannot be received after his term is out to show that he did not consider his assessment a valid act or final. The hoard made the assessment in the way that all other assessments were made. It gave notice of the assessment to the' railroad company as required by statute, and at the end of 30 days it gave notice, as provided by the statute, that the assessment had become final. When this had been done, the matter passed beyond the control of the board. A final assessment had been had as provided by law, and, if any injustice was done the taxpayer, it was due entirely-to his failure to appear before the board and ask-a reduction of the assessment. No reliance could be placed in such proceedings if the validity of the record was made to depend upon the secret intentions of the assessing officer. The validity of their actions depends upon what they do, and not upon their undisclosed purposes. When the assessment had become final and the railroad company owed the State the amount of taxes thus fixed, the assessing officers were without- authority afterward to make any agreement with the railroad to the effect that, if the railroad would pay the taxes for 1899, they would forego collecting the taxes for the previous years. This precise question was also presented in the case of Southern Railway in Kentucky v. Coulter, 113 Ky. 676, 24 Ky. Law Rep. 203, 68 S. W. 877. In disposing of it, we there said: “Even if it be conceded that the old board agreed or stipulated with the appellants that they should not pay any franchise tax to the local authorities, still such agreement is null and void. It was held in City of Louisville v. Louisville R. Co., 111 Ky. 1, 23 Ky. Law Rep. 390, 63 S. W. 14, 98 Am. St. Rep. 387, by tbl s court that the city council of Louisville could not release a street railway company from taxes due the city. Much less could the hoard of valuation and assessment release appellants from local taxation of the value of their franchise.”

Much is said in the argument as' to the hardship of the case; but we fail to see that appellant has any substantial grounds for complaint. It has escaped the payment of all franchise taxes1 for the year 1896,- and has only been required to pay for one year, instead of two; and, as far as the amount of the assessment goes for the year 1897, it is much less than it has been- for the years. succeeding 1899. The personal judgment against the Illinois Central Railroad Company was proper because it was in possession of the property, and made the report upon which the assessment was made. The question most seriously insisted on is that the action was barred by limitation. The suit was brought within five years after the assessment was made, but it was not brought within five years after the assessment might have been made by the board. The board should have made the assessment in the winter of the year 1897, and the. action was not brought within five years from that time. Previous to the passage of the act of 1890 (Laws 1889-90, p. 149, c. 1763), it was well settled that an action to recover taxes did not accrue until the taxes were assessed. L. & N. R. R. Co. v. Commonwealth, 1 Bush, 250; Covington v. Wilson, 5 Ky. Law Rep. 778; Louisville v. Johnson, 95 Ky. 254, 15 Ky. Law Rep. 615, 24 S. W. 875. It is insisted, however, that this action is governed by the act of 1890, and that that act changes the rule. The case of the Louisville Water Co. v. Commonwealth, 89 Ky. 244, 11 Ky. Law Rep. 414, 12 S. W. 300, 6 L. R. A. 69, was decided on October 31, 1899. It was there held that,'in the absence of legislative authority, taxes cannot be recovered by suit. Tbe Legislature met soon after that opinion became final, and proceeded promptly to pass tbe act of 1890 to change the rule then laid down. The purpose of the act was to give the Commonwealth a right to collect taxes by suit in those cases where there was no legislative authority for a suit to collect taxes. It authorized actions “to recover all taxes which may heretofore have accrued to the Commonwealth, or which may hereafter accrue and which cannot be collected by the ordinary methods of distraint and sale * * * for the purpose of enforcing the State’s lien on property which for any reason cannot be sold, or for the purpose, of reaching intangible property which cannot otherwise be reached.” The act then concludes, with these words: “But no action shall be instituted or maintained under the provisions- of this- act upon any claim for taxes that have been assessed or might have been assessed more than five years before the commencement of the same.” Laws 1889-90, p. 149r c. 1763. It will be observed that the limitation provided by this act only applies to an action “instituted or maintained under the provisions of this act. ’ ’' If this action was not, and could not be, brought under the provisions- of the act of 1890, then the limitation provided in that act does not apply here; for, by the express terms of the act, the limitation it prescribes only applies to actions instituted under the-act. At the time the act of 1890 was passed the Commonwealth had no’ adequate means of collecting its taxes from such corporations as the Louisville Water Company, where the ordinary method of distraint and sale was not applicable. T'o remedy this defect, the act of 1890 was passed. In giving the Commonwealth a right of action which it did not previously have, the Legislature might annex to the grant such limitation as it saw fit; but this limitation would have no effect as to taxes which might be collected by suit under other legislation without regard to the act of 1890. At the time the act of 1890 was passed there was no such thing in the . State as a franchise tax. After the adoption of the present Constitution in 1891, the Legislature by the act of 1893 (Laws 1891-92-93, p. 331, c. 103, art. 8, section 3 provided for a franchise tax, and provided that the tax should be paid by the corporation into the treasury, and that, if it was not so paid, an action might be maintained by the Commonwealth in the Franklin circuit court against the corporation to collect it. Ky. St. 1903, section 4171; Central Railroad Co. v. Commonwealth, 106 Ky. 329, 20 Ky. Law Rep. 927, 49 S. W. 456. This action was brought in the Franklin circuit court under section 4171, Ky. St. 19£)3. It could not have been maintained under the act of 1890, for that act did not confer jurisdiction upon the Franklin circuit court.; and, if the action had, been brought under that act, it must have been brought in the Jefferson circuit court, the county of the defendant’s residence. As it could not be brought under the act of 1890, the limitation prescribed by the act of 1890 is not applicable. When the Legislature provided a franchise tax, it had the right to prescribe how this tax should be collected. This it did by section 4171. When the Legislature required the corporation to pay the money into the treasury, the cause of action by the State against the corporation did not accrue until the person was required to pay the money into the treasury, and had, failed to do so. When he failed to pay the money, his liability, was a cause of action created by statute, and by. the express provision of the general law • an action might be maintained upon it within five years after the cause of action accrued. Ky. St. 1903, section 2515. Where the Legislature created by statute a liability and in the statute provided no limitation, necessarily the limitation provided by the general law, in section 2515, Ky. St. 1903, applies. This was so held in Louisville & J. Ferry Co. v. Commonwealth, 108 Ky. 717, 22 Ky. Law Rep. 446, 57 S. W. 624, 626. That was an action to collect the franchise tax for the year 1893, the assessment having been made on March 12, 1898. The counsel for appellant relied on the act of 1890, insisting that under it the action was barred by limitation as it was not begun in five years after the taxes might have been assessed. See abstracts of briefs, 108 Ky. 718-719, 57 S. W. 624, 626. In answer to this the court in its opinion called attention to its previous ruling in the case of Central Railroad Co. v. Commonwealth, 106 Ky. 329, 20 Ky. Law Rep. 927, 49 S. W. 456, to the effect that actions to collect franchise taxes might be maintained in the Franklin circuit court; and expressly held that the action was not based on the act of 1890. The court said: “The questions involved in this case are the same as in five other cases of the same appellant against the same appellee, this day decided (108 Ky. 717, 22 Ky. Law Rep. 446, 57 S. W. 624), except it is insisted that the statute of limitation bars a recovery. This court decided in Central Railway Bridge Co. v. Commonwealth, 106 Ky. 329, supra, that an action could be maintained under certain sections of the Kentucky Statutes, not necessary to mention, but it is sufficient to say the right to do so is not based on the act to which counsel refer.” 57 S. W. 624, 626, 108 Ky. 726. “We have examined the revenue act, and are unable to find any provision therein limiting the time in -which an action shall be brought to enforce a claim for taxes against the owner. Taxes are liabilities created by statute-, and are barred after the lapse of five years after they are due and payable, and they do- not become due until after the assessment is made. Section 2515, Ky. St. 1903. These taxes were not assessed until 1898; and, of course, the statute does not bar a recovery.” 57 S. W. 624, 626, 108 Ky. 727.

The same question was involved in Southern Railroad in Kentucky v. Coulter, 113 Ky. 657, 68 S. W. 873, 24 Ky. Law Rep. 203. There franchise taxes from various corporations to the counties of the State for the year 1896 and the subsequent years were in question. As to a part of the taxes .more than five years had elapsed since the taxes might have been assessed. The court held the corporation liable. The question of limitation is not mentioned in the opinion, for the reason that the matter was deemed settled by the previous opinion. In the case of Louisville v. Commonwealth, 63 S. W. 580, 23 Ky. Law Rep. 598, which was an action brought under the act of 1890, and was not provided for by any other provision of the statute, the court applied the limitation of that act; thus showing that the court .clearly had in mind that actions brought under the act of 1890 were governed by the limitation prescribed in that act. Counsel cite the cases of Railroad Co. v. Commonwealth, 115 Ky. 278, 72 S. W. 1119, and Commonwealth v. Nute, 115 Ky. 239, 24 Ky. Law Rep. 2138, 72 S. W. 1090; but both of those cases were proceedings to assess omitted property under section 4241, Ky. St. 1903. There is nothing in either opinion touching suits to collect taxes. The conclusion we have indicated is in accord with these cases. It was there held that under section 4241, Ky. St. 1903, property might he retrospectively assessed within .five years after the right to maintain the proceeding accrued.- By the statute when the assessment is made, under it, the taxes are to be collected as other taxes,- and so it necessarily' follows that the State, is not barred of collecting the taxes after five years from the time they might have been assessed-; but, under these decisions, she has five years to make the assessment, and' may then collect the taxes as other taxes are collected. To hold otherwise would be to hold that the State must make the assessment and sue for the taxes in five years, .which would be inconsistent with all the cases on the subject.

Judgment affirmed.  