Pennington v. Woolfolk, &C.

• Decision Date: 20 April 1880
• Citation: 79 Ky. 13
• Court: Kentucky Court of Appeals
• Parties: Pennington v. Woolfolk, &c.

79 Ky. 13

Pennington v. Woolfolk, &c.

Court of Appeals of Kentucky.

April 20, 1880.

APPEAL FROM JEFFERSON COMMON PLEAS COURT.

R. W. WOOLLEY AND P. B. MUIR FOR APPELLANT.

C. B. SEYMOUR AND L. C. WOOLFOLK FOR APPELLEES.

CHIEF JUSTICE COFER DELIVERED THE OPINION OF THE COURT.

Proceedings were instituted in the Jefferson county court by the appellee, who is county attorney of that county, under an act, entitled "An act to amend article three of chapter five of the General Statutes," approved February 23, 1874, Acts 1873-'4, 147).

By that act the General Assembly attempted to re-enact sections 3, 4, 5, 6, 7, 8, and 10, of article 1, sections 1 and 5, of article 2, and sections 2, 3, 4, 5, and 6, of article 3, of chapter 93, of the General Statutes, which had been previously repealed, and to impose upon the county attorney of the counties respectively, the duties imposed by chapter 93 upon the revenue agent.

Section 3 of chapter 93, as re-enacted by the act of 1874, supra, and thereby made part of chapter 5, provides that when any person owning property in this Commonwealth has failed, since January 10, 1856, to list his property with the assessor, whose duty it was to assess the value thereof, or with the supervisors of tax, or the clerk of the county court, it shall be the duty of the county attorney to give information thereof to the county court of the county in which said property should have been listed; and that the court shall summon such person before it, and upon being satisfied that he has failed to list his property, "to assess and fix the value of the same for the years such property was not assessed, and the same shall be certified by the said court to the proper officers for the collection thereof.

The appellant appeared in the county court, and moved to quash the summons; but his motion was overruled. He then demurred to the information, and the demurrer having been also overruled, he applied to the common pleas court for a writ of prohibition against the county judge and county attorney forbidding them to take any further action in the proceeding against him.

The common pleas court sustained a demurrer to the petition, and dismissed it. This appeal is from that judgment.

It is not claimed that the county court was proceeding irregularly, if it had jurisdiction to proceed in the matter at all.

In the recent case of Howell v. Commonwealth (ante), it was contended that the statute is unconstitutional, because the title does not indicate the subject of the act; but we did not find it necessary to pass upon the point in that case.

In this case the point there made is not relied upon. If, however, we find the act constitutional in other respects, it will become necessary to decide whether the title is insufficient, because if, for that reason, the act is void, the county court had no jurisdiction, even to entertain the proceeding.

The objection taken to the act in this case is, that by it the Legislature has attempted to confer on a judicial tribunal a power not judicial in its nature, in violation of article one of the Constitution, which declares that —

SEC. 1. "The powers of the government of the State of Kentucky shall be divided into three distinct departments, and each of them be confided to a separate body of magistracy, to-wit: Those which are legislative to one; those which are executive to another; and those which are judiciary to another.

SEC. 2. "No person, or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted."

The power to impose taxes is legislative, and cannot be conferred, under our constitution, upon a strictly judicial tribunal or officer.

The power to assess property for taxation, that is, to apportion the tax upon the property upon which the legislature has imposed it, is not judicial, and can no more be conferred upon a judicial tribunal than the power to levy taxes.

But the county court, although classed in the judiciary department by the constitution, and possessing judicial powers, is not an exclusively judicial tribunal.

We might not be able to sustain this position if compelled to rely alone upon the constitution, and denied the right to look to the practical constitution uniformly given to it since the formation of the government.

But in the light of the unchallenged action of all departments of the government since the adoption of the constitution of 1792 to the present time, we entertain no doubt that the county court must now be regarded, as respects a number of matters local and exceptional in their nature, as excepted out of this provision of the constitution.

Each of the prior constitutions contained the precise language of our present constitution quoted supra.

In 1793 (M. & B., 503), the legislature enacted a law making it the duty of the county court "to take bond and security of the sheriff or collector" of the public revenue and to appoint two of their own body to settle with such sheriff or collector, and report such settlement to the court. An act of 1796 (M. & B., 504) gave the county court cognizance of the settlement of the accounts of guardians and of admitting deeds to record. It also gave power "to grant ordinary license, and regulate and restrain ordinaries and tippling-houses;" to purchase land and cause public buildings to be erected, and "if the court of any county shall, at any time think fit, they are hereby authorized and empowered, at the charge of their county, to cause a ducking-stool to be built in such convenient place as they should direct." An act of 1810 (M. & B., 506), gave that court power to "lay a county levy covering the amount of claims against such county at the time of laying such levy, or which it was known would become due under engagements for public buildings by the time said levies would be collected and accounted for by the several sheriffs or collectors, adding a reasonable overplus for probable delinquents," &c.

By subsequent statutes county courts were empowered to establish roads and ferries, and to fix the rates of ferriage and the charges to be made by innkeepers. To these may be added acts giving the county court power to provide for the poor, and to take measures to prevent the spread of the small-pox, and many others of a similar character which it is not deemed necessary to refer to.

That the greater part, if not all, of the powers above referred to as having been conferred upon the county court are non-judicial in their nature, will not be disputed; but in no instance of which we are aware was the constitutionality of any of these acts assailed, and certainly none of them were ever pronounced by this court to be invalid.

But we are not left to infer from the enactment and long continued existence of statutes of a merely kindred nature to that now under discussion that it has through the whole legislative and judicial history of the state been regarded as competent to confer upon the county court powers not in their nature judicial, and especially powers relating to the revenue of the state.

We find that in 1819 (M. & B., 1373-76) the legislature enacted a law providing that the assessor should report in...