Slaughter v. City of Louisville , 89 Ky. 112 ( 1888 )

JUDGE BENNETT

delivered the opinion oe the court.

As these cases involve the same questions, they, by agreement, are to be heard together.

The appellee, by actions in the Louisville Law and Equity Court, sought to subject real estate, situated in the city of Louisville, belonging to appellants, to the payment of ad valorem taxes, alleged to have been assessed against the same by the appellee for the years 1877 to 1885, inclusive. The appellants resisted the appellee’s right to recover these taxes, upon the ground that there was no assessment for any one of said years, and upon the ground of errors committted in the election, organization and official transactions of the various boards provided by law fpr the hearing of appeals from the alleged assessments.

By an act approved February 17, 1866, a board of tax commissioners was provided for, whose duty it was to hear the tax-payers’ complaints of improper assessments, &c. This board was required to give notice of its sittings by public advertisement.

In the case of Ormsby v. The City of Louisville, 79 Ky., 197, it was held that the publication of this notice was a condition precedent to the city’s right to collect ad vaLorem taxes.

In the case of Dumesnil v. The City of Louisville, decided by this court in 1882, 4 Ky. Law Rep., 14, it was held that a newspaper advertisement, signed by the city assessor, he being ex officio a member of the board, was not a notice published by the board.

The appellee fails to show publication of notice in any other way. It, therefore, fails to manifest a right to recover of the appellant any of the taxes that might have been assessed prior to 1882.

The notice for 1882 appears to have been given in due form; but the board failed to meet at the time fixed by law for its meeting ; therefore, .the levy for 1882 was invalidated.

By an act approved March 29, 1882, the city assessor was directed to re-assess any real estate upon which taxes liad not been paid, and to assess all property not previously assessed.

This act also provides a board of commissioners, consisting of the auditor, treasurer and chairman of the committee on assessments, whose duty it shall be to be in continuo as session for the purpose of hearing appeals, &c. This board never met or organized. According to the decisions of this court, the failure of said board to organize and meet, the re-assessments, if any there were, fell to the ground.

By an act approved April 8, 1882, it was made the duty of the assessor to re-assess any real estate that had been erroneously assessed. This re-assessment was required to be made as of the first day of September in . each year. But the assessor was required to give written notice by mail to each person whose property he proposed to assess before making the assessment. It is not contended that any re-assessment, as required by this act, 'was made or attempted to be made. Therefor!', the appellee still shows no right to collect taxes from the appellants up to and including 1882.

The act of April 8, 1882, also regulated the assessments made after its date. These assessments were required to be made on the first day of September, 1882, and annually thereafter. The assessment books were required to remain open in the office of the assessor from the 15th to the 30th day of November in each year, during which time any tax-payer, dissatisfied with his assessment, might file his complaint with the assessor.

This act abolished the board of commissioners, and, in its stead, provided for the appointment of a board of •equalization, whose duty it was to hear appeals, &c. This board was to be appointed by the mayor, by and with the consent of the board of aldermen.

The act provided for the appointment of this board in September, 1882; but it was not appointed until November of that year, and the appointment was made without the consent and approval of the board •of aldermen. The sittings of this board of equalization in November, 1882 and 1883, were, therefore, without authority. Hence, the tax-payers were not called upon to file any complaint with the assessor in reference to erroneous assessments, for the reason that there was no legally appointed board to act upon them. This defect was fatal to the taxes of 1883 and 1884.

By an act approved April 19, 1884, it was attempted to legalize the act of the mayor in appointing the board •of equalization, without the consent and approval of the board of aldermen. This act attempts to validate the acts of said board. This act also provides that said board “shall have full power, during the months of June and July, 1884, to correct, increase or reduce any unpaid assessment for the years 1883 and 1884; and any tax-payer delinquent for said years may appear before said board of equalization, by petition in writing, for correction of his tax bill as in said act provided.”

We construe this act to mean that the tax-payer, in order to entitle him to a hearing before said board, was required to file a petition before it, setting forth his complaint; and that it was the duty of said board to be in session, during the months of June and July, in order to afford the tax-payer the entire two months in which, to file his "petition. Also, that the session, in order to be legal and valid, should have commenced on the first day of June, and continued until the last day of July. The board was created for a special pur-' pose ; its life was fixed for two months, commencing on the first day of June, during which time the tax-payer had the right to file his petition, setting forth his complaint ; and a failure of the board to begin its session on the first day of June was equivalent to a notice to the tax-payers that the members of it had declined to actas such; and a subsequent meeting of the board, to-wit, on the l()th of June, was not a compliance with the terms of the act, and the tax-payer was not required to take notice of it.

By an act approved April 28, 1884, which was amended and re-enacted by an act approved May 12, 1884, it is enacted, by the third article of the latter act, that all persons whose property was attempted to be assessed for the years from 1876 to 1882, inclusive, “in the sense that assessments against them were extended upon the assessor’s books, and who have not paid those assessments, are, as far as such prior levies or assessments were inoperative and void, assessed now upon the extended value of such property as appearing on said books at the following rates,” &c.

The act, supra, does not attempt to cure merely defective assessments. The appellee’s petition does not disclose that the alleged assessments for the years, from 1876 to 1882, inclusive, were merely defective and irregular. Its petition alleges that said alleged assessments were defective; but no fact is. alleged showing that they were merely defective. It is settled, beyond question, that where assessments are merely defective by reason of some mistake or omission of the officer, such defects may be cured by subsequent legislation. If the appellee wished to maintain his action, upon- the ground that the alleged assessments were merely defective and not void, it was incumbent upon it to allege such facts, in connection with the assessments, as would show that they were merely irregular and defective, and not void. The simple allegation that the assessments were defective is not sufficient.

The third article of the act of the 12th of May, 1884, does not attempt to validate assessments that were merely defective, for it expressly declares that said assessments, in so far as they were inoperative and void, are now assessed.

It is also to be observed that said act recites no fact that shows that said assessments were merely defective, and not void. So, if the appellee can maintain its action at all, it must be upon the ground that the assessments, extended in the assessor’s books for said years, were inoperative and void, and that the Legislature made the assessments for those years, and authorized an action upon them. So the question to be decided is, whether the Legislature has the constitutional power to assess ad valorem taxes.

By the Constitution of this State, the powers of the State are divided into three distinct departments — the legislative, executive and judicial. It is a fundamental principle that neither department can exercise the powers belonging to the other. It is well settled that the valuation of property, for the purpose of ad valorem taxation, is, in its character, a judicial act. (Cooley on Taxation, page 288.) But, by the division of the powers of the government in this State, it belongs to the ministerial class of duties. (Pennington v. Woolfolk, 79 Ky., 13 ; Cincinnati, &c., R. Co. v. Commonwealth, 81 Ky., 497.)

In the case of Hager v. Reclamation District, 111 U. S., 710, it is said: “But where a tax is levied on property, not specific, but according to its value, to be ascertained by assessors appointed for that purpose, upon such evidence as they may obtain, a different principle comes in. The officers, in estimating the value, act judicially.”

This court, as the proof and extract show, classes it among the judicial powers of the State; and, in California, the power is held to belong to the ministerial department of government. The valuation or assessment of property in this State not only belongs to the ministerial department of government, but is an indispensable act in order to levy ad valorem taxes upon it. In the nature of the thing, there must be an assessment. On this subject Cooley, in his work on Taxation, lsted., page 259, says: “Of the necessity of an assessment, no question can be made. Taxes by valuation cannot be apportioned without it. Moreover, it is the first step in the proceedings agaihst individual subjects of taxation, and is the foundation of all which follow it. Without an assessment, they have no support, and are nullities. It is, therefore, not only indispensable, but, in making it, the provisions of the statute under which it is to be made must be observed with particularity.”

Can. the Legislature, in order to authorize the collection of ad valorem taxes, fix the valuation upon the property to be assessed? It seems to be well settled that the Legislature, as the law-making department of the State government, has no constitutional power to fix the valuation of property which is to be taxed upon ad valorem principles. The reason for this rule is, that the legislative department has no judicial, executive' or ministerial powers, and as the valuation in this State belongs to the ministerial powers of government, it follows that the Legislature has no constitutional power to make the valuation. Taxes are not debts. Debts are obligations, founded upon contracts, express or implied. But taxes are impositions, levied for the support of the State government, or for county or city purposes. When they are imposed by authority, they operate on the tax-payer “inviium” When they take the form of a percentum, there must be a valuation as a basis of the power to levy and collect them. The tax-payer is entitled to be heard in fixing this valuation. The basis of the right to collect taxes from him consists in the valuation of his property ; and to deny him the right to be heard in making this valuation, would be the taking of his property ■without due process of law. The valuation is the due process of law by which the right to take his property for' taxes is begun; and the Legislature, having no judicial, executive or ministerial power, cannot make the valuation; but the valuation must be made by some person authorized to exercise in this State ministerial power, and such person is the assessor. But it is said that an assessment had been made by an assessor. If so, the act says that such assessment was “inoperative and void.” Therefore, it was not merely defective, but was an absolute nullity. It had not the shadow of an existence. It was treated by the act as if no assessment whatever had been made. In such state of case, the Legislature had no constitutional power to make, the assessment, not even as a curative act; for, as the assessment was void, there was nothing to cure.

In the case of People v. Hastings, 29 Cal., 452, where the assessor for the city of Sacramento had made a void assessment of property, and the Legislature, by its own act, made an ad valorem assessment, taking as a basis said assessor’s attempted assessment, the court said: ‘ ‘ By recurring to the act of 1808 to incorporate the city and county of Sacramento, it will be seen that the assessor, who made the assessment for the year 1860, was elected by the qualified electors of the city and county of Sacramento, which is in a different district from that of the city of Sacramento. The insufficiency of that assessment, as the basis for taxation for the year 1863, is apparent on several grounds. It was not made by an assessor elected by the qualified electors of the district in which the property to be taxed was situated — the city and county of Sacramento not being the same district as that of the city of Sacramento. The making of the certified copy of the assessment roll for the year 1862 so as to include property within the city of Sacramento, can not be regarded, in any sense, as the making of an assessment of such property by the assessor. The copying by one officer of the valuation made by another officer is not a valuation made by the first officer. If it is a valuation, in any sense, for the year 1868, it is a valuation made by the Legislature; and in view of the division of the powers of the government into three departments — the legislative, executive and judicial — it will not be claimed that the legislative department was competent to perform the purely execu - tive functions of an assessor. The objection is not ■obviated by the finding that the assessment was ‘ duly and regularly made ’ in accordance with the statutes, for the only assessment that was provided for by the statutes, was the attempted adoption of a previous assessment, and if any other than such an assessment had been made, the valuation would not have been ■£ascertained as directed by law.’”

In the case of the People v. San Francisco Savings Union, 31 Cal., 138, it was held: “A valuation is the very foundation of proceedings for apportioning and ■collecting a tax upon property. It is essential to the validity of a property tax. * * * If the assessor has failed to make an intelligible valuation, that duty cannot be performed or the defects remedied by the Auditor. Nor can the Legislature make the valuation.”

Where an assessment has been, in fact, made by the assessor, which assessment, by reason of some irregularity in his proceedings, is merely defective, but not void, such defect may be cured by legislation. In such •case, the curative statute relates back to the assessment, and makes it sufficient, for the purpose of collection, by virtue of said assessment. The power of the Legislature to pass a valid curative act consists in the fact that there was an assessment, having some elements of vitality, to which more strength may be given for the purpose of-making it enforceable. The assessment must have some vitality, in order to give the Legislature jurisdiction of it. If it has no vitality, but is void, the Legislature has no jurisdiction of it. In the nature of things, there can be no jurisdiction over a thing that does not exist, and an act that is void has no legal existence whatever. The assessment being void, the Legislature has no jurisdiction over it. It could not cure the act of assessment, because there was nothing to be cured. All it could do was to provide for a re-assessment and its collection. The act, in so far as it attempted to assess the appellants’ property, is without constitutional authority, and is, therefore, void.

The judgment of the lower court in each of the cases is reversed, with directions to dismiss them.