LATIMER, Justice. Jefferson County and the Jefferson County Board of Education, suing on behalf of themselves and all other counties similarly situated, filed a petition in equity in the Franklin Circuit Court against the Kentucky Tax Commission, alleging in substance: (1) that the Kentucky Tax Commission had arbitrarily and capriciously fixed the assessment value on stored whiskey for ad valorem property taxes; (2) that the Commission erroneously equalized this assessment at 42%, setting a value of $42 per barrel, which was only a part of the real value; and (3) that the Commission, in its method and mode of computation in arriving at the assessed valuation, deprived them of their constitutional rights. Other taxing units in fourteen additional counties joined as parties plaintiff. The City of Midway was permitted to intervene.
The prayer in the petition requested the court to adjudge the assessment void and mandatorily to enjoin the members of the Commission to reassemble and 'fix the sale value of the said whiskey and distilled spirits for tax purposes at the price same would bring at a fair voluntary sale.'
The Commission demurred specially to the petition on the ground that plaintiffs had no right or legal capacity to maintain the action and that the trial court had no jurisdiction. The court overruled this special demurrer.
The Commission, after filing motion to strike certain allegations of the petition, demurred generally to the petition.
The court overruled both the general demurrer and the motion to strike. The Commission having declined to plead further, the court adjudged the assessment to be void and ordered the members of the Commission to reassemble and assess the property without equalization and to value the whiskey at the actual amount it would bring at voluntary sales as shown by the evidence contained in the record.
Appellants contend that their special demurrer should have been sustained because appellees are mere political subdivisions having no authority in the assessment of distilled spirits and the Commonwealth has expressly withheld from them any appeal from or review of an assessment made by the Commission.
Appellants base their argument on KRS 131.125(1) which provides: 'Unless otherwise specifically provided by law, no appeal from or review of any tax assessment, ruling, order or finding of the Department of Revenue or of the Kentucky Tax Commission shall be allowed except in the manner and subject to the conditions as provided in KRS 131.110 and 131.120.'
KRS 131.110(2) refers to 'Any taxpayer who has been assessed' and KRS 131.120(1) refers to '* * * an aggrieved taxpayer'.
KRS 131.125 clearly makes an appeal under KRS 131.110 and 131.120 an exclusive remedy insofar as the 'aggrieved taxpayer' is concerned. This is not an action by an aggrieved taxpayer.
Under our law, the fiscal courts, not the taxpayers, are vested with the primary duty to institute all suits on behalf of the counties. KRS 67.080. Likewise, our statutes, KRS 160.160, 160.290, place upon the boards of education, not the taxpayers, the initial responsibility of maintaining legal actions on behalf of the school districts. Furthermore, this court refuses to permit a taxpayer to bring suit in a matter concerning public funds until he has first requested the authorized school board, county or other public body to institute such action and the official body has refused to comply. Commonwealth, by and through Barton v. Mauney, 1935, 258 Ky. 429, 80 S.W.2d 568, and cases cited therein.
The leading case on the right of appellees to maintain such an action is City of Louisville v. Martin, 1940, 284 Ky. 490, 144 S.W.2d 1034, 1036, which is closely analogous to the instant case. That action was instituted by the City of Louisville, Jefferson County and the Jefferson County Board of Education against the members of the Kentucky Tax Commission, because of their alleged arbitrary and capricious action in assessing stored whiskey. Many questions were raised by a special demurrer as shown by the following quotation from the court's opinion: 'There is stubborn controversy concerning the right of appellants to maintain this character of action. On behalf of appellees it is argued in effect that the commonwealth is immune from suits unless the right of action has been conferred by the constitution or by legislative act pursuant thereto (Constitution, section 231); that appellants are mere agencies of the state with only such authority as has been granted by statute; that while this action is brought against appellees, it in fact and to all intents and purposes is an action against the state; that under the statutes the assessment is final with no right of appeal granted; that authority for such action is not conferred by either the constitution or statutes. Appellants, of course, are out of agreement with appellees and make issue on every question argued; and assert in substance that this is not an action against the state nor an attempt by one of its subdivisions or agencies to control its functions, but an action to compel an official board of the state to perform a duty imposed upon it by law on behalf of the state as well as of appellants and which it has failed and refused to perform.'
After consideration of the above contentions, this court concluded that the action could be maintained by the local taxing districts and held that the special demurrer to the petition should have been overruled.
On authority of the Martin case, we conclude that the lower court correctly overruled appellants' special demurrer. To hold otherwise would bring within the range of possibility a situation wherein the Tax Commission could arbitrarily set the assessment at such a ridiculously low amount as to defeat the very purpose of taxation, with no recourse on the part of those to be benefited by the tax.
Appellants next contend that even though Jefferson County had the power to maintain this action, the Commission's general demurrer should have been sustained, because the petition did not state a cause of action and further because the Commission ...