Commonwealth ex rel. Attorney General v. Tamer

• Decision Date: 23 February 1943
• Parties: COMMONWEALTH ex rel. ATTORNEY GENERAL v. TAMER et al.
• Court: Kentucky Court of Appeals

169 S.W.2d 19

293 Ky. 357

COMMONWEALTH ex rel. ATTORNEY GENERAL v. TAMER et al.

Court of Appeals of Kentucky

February 23, 1943

Appeal from Circuit Court, Bell County; J. S. Forester, Judge.

Action by the Commonwealth of Kentucky on the relation of the Attorney General for the use and benefit of the Board of Education of Middlesboro against Elias H. Tamer and others to escheat real property of an alien owner. From a judgment of dismissal, plaintiff appeals.

Reversed for proceedings consistent with opinion.

Huberth Meredith, Atty. Gen., and E. P. Nicholson, Jr., and Robert J Watson, both of Middlesboro, for appellant.

Garfield R. Drinnon, of Middlesboro, and Henry L. Bryant, of Pineville, for appellees.

MORRIS Commissioner.

In August, 1941, there was filed in the Bell circuit court a petition in the name of the "Commonwealth of Kentucky," alleging that Tamer held title by deed to a block of property in Middlesboro, which he had held for more that twenty-one years. The petition signed by the Attorney General sought to escheat the block, on the ground that when it was acquired Tamer was an alien, and had not, before or since, become a citizen of the United States, and that he and his wife were residents of Syria, nonresidents of Kentucky and the United States.

Warning order attorney, with counsel for Tamer at a succeeding term of court, filed special demurrer, which the court sustained. Plaintiff amended by alleging that the suit would be prosecuted "on relation of the Attorney General, for the use and benefit of the Middlesboro Board of Education." The demurrer was extended to the petition as amended and sustained; plaintiff declining to plead further the petition was dismissed with appeal. Appellees contend that the court correctly ruled, because: (1) there is no statute directing the Attorney General to institute a suit to escheat; (2) § 4399-56, Ky.Stats., 162.040, K. R. S. designates the exclusive agency to prosecute such suits. The statute reads "So much property in each school district as from any cause shall escheat to the Commonwealth of Kentucky, shall vest in the board [of education] for the use and benefit of the public schools in said district. Said board may, in the name of the Commonwealth, for the use and benefit of the said schools, by its chairman or other officer to be designated by it, enter upon and take possession of said property, or sue for and recover the same by action at law or in equity. *** 1934, C. 65, Art. V, § 50. Eff. June 14, 1934."

Sections 334 et seq., Ky.Stats., 381.290 et seq., K. R. S., dealing with property rights of aliens do not provide by whom or in what manner escheat suits should be maintained. Section 1606 Ky.Stats., 393.020, K. R. S. et seq., providing for an escheator, limit his activities to suits maintainable under their provisions which do not relate to escheat of property held by aliens. In Ripley v. Von Zedwitz, 201 Ky 513, 256 S.W. 1106, we analyzed the expatriation and alien laws, and pointed out that the property of an alien held contrary to the act was to be escheated under the common law. We found the act to be an enabling rather than disabling law, fixing terms under which aliens might hold.

By reference to older cases we observe that statutes of similar import have been held to grant the board the power. Commonwealth for use of Louisville School Board v. Chicago, St. L. & N. O. R. Co., 124 Ky. 497, 99 S.W. 596; Louisville School Board v. King, 127 Ky. 824, 107 S.W. 247, 15 L.R.A.,N.S., 379; Louisville Banking Co., et al. v. Commonwealth, 142 Ky. 690, 134 S.W. 1142, but in none of these was the question raised as to exclusive right. In the Railroad case, supra (124 Ky. 497, 99 S.W. 596) the question as to the Board's capacity was raised by special demurrer, based on the ground that it was the duty of an escheator to maintain the suit. We were there construing § 2971, Ky.Stats., 1903, which in effect was and is the same as the one in question which had repealed all similar statutes.

On the authority of the cases cited, it must be conceded that the Board had the power to institute the suit in "the name of the Commonwealth," so provided in the statute perhaps because the Commonwealth of Kentucky is deemed to have possessed the original and has the ultimate property in and to all the lands within her boundaries, Ky.Stats., § 2337, 381.010,...