Commonwealth v. Barker
| Decision Date | 19 June 1907 |
| Citation | 103 S.W. 303,126 Ky. 200 |
| Parties | COMMONWEALTH v. BARKER ET AL. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Franklin County.
"To be officially reported."
Action by the commonwealth against M. S. Barker and another. From a judgment for defendants, plaintiff appeals. Affirmed.
N. B Hays, Atty. Gen., and C. H. Morris, for the Commonwealth. W S. Pryor and Helm & Helm, for appellees.
This action was instituted in the Franklin circuit court by the commonwealth of Kentucky to recover of L. C. Norman ex-Auditor of the State, and M. S. Barker, his agent, a large sum of money of which it was charged they had wrongfully and fraudulently deprived the state. The petition charged that the Auditor and his agent had entered into a fraudulent conspiracy by which the former paid over to the latter large sums of money as fees for certain illegal services pretended to have been rendered with reference to the collection of back license taxes. The defendant answered, denying all the allegations of the petition; then pleaded affirmatively in the second paragraph that the agent had rendered the services and collected the back license taxes for the state under the advice of the Attorney General, who, when the question was submitted to him, advised that it was the duty of the agent to perform the services, and that he was entitled to the fees allowed by the law for such work; that this construction of the statute had existed and been put in operation by all the officers of the state for many years, and recognized by the Legislature as the correct construction of the statute, and that the services were performed under the direction of the Auditor, who acted under the legal advice of the Attorney General; and pleaded the contemporaneous construction of the statute, and the performance in good faith of the work as a defense to the action. The trial court sustained a general demurrer to the second paragraph of the answer, holding that as the petition charged a fraudulent conspiracy, the commonwealth would have to recover on that ground alone, and that the second paragraph was not a good defense to the charge of fraudulent conspiracy to rob the state. The case came on for trial upon the allegations of the petition and the denials of the first paragraph of the answer. The commonwealth utterly failed to sustain its allegations of a fraudulent conspiracy, and contented itself alone with showing that the work had been done and the money paid to the agent. At the close of the plaintiff's testimony the trial judge gave a peremptory instruction to the jury to find for the defendant on the ground that there was no evidence to support the charge of fraudulent conspiracy or other wrongdoing on the part of the defendants, or either of them. Upon appeal this judgment was reversed; the court holding substantially that the commonwealth was entitled to recover fees paid without warrant of law, although there was no evidence of any corrupt bargain between the Auditor and his agent. This was the sole question before the court, and any general language in the opinion which seems to go beyond this is dictum.
When the case returned to the trial court the defendant Barker was permitted to refile his answer, to which theretofore a general demurrer had been sustained, and he was also permitted to amend by adding a paragraph in which he alleged that he had performed very valuable services for the commonwealth of Kentucky, and expended large sums of money of his own in so doing, and had given his time and attention exclusively to the work; that the revenues of the state had been largely increased by reason of his work, and that the state had accepted the results of his labor and the expenditure of his money; and that he was entitled to recover the reasonable value of his services, as well as the money expended by him in performing the services for which the state had obtained the benefit. The case was referred to the commissioner to take proof and report the reasonable value of appellee's services and his money outlay. The commissioner reported that, in performing the service of collecting the license fees, he had employed agents whom he had paid in the aggregate the sum of $5,377.05, and that his own services were reasonably worth 20 per cent. of the amount covered into the treasury, and that these two items constituted a just and lawful counterclaim against the commonwealth. No exceptions were filed by the commonwealth to the report of the commissioner, and upon final hearing a judgment was awarded allowing the counterclaim shown to be due by the commissioner's report; and of this judgment the commonwealth now complains.
The evidence shows that M. S. Barker was appointed Auditor's agent by Gen. Fayette Hewitt long before the origin of this litigation; that Hewitt, as the general fiscal officer of the state, had ascertained that the revenue of the commonwealth from license fees had very largely depreciated, and especially was this true in Jefferson county, Ky. the district in which appellee was Auditor's agent; that Hewitt thereupon ordered his agent to take up this work, and to enforce the collection of all past-due licenses. The appellee was loath to perform this work, but his superior in office informed him that he had taken the advice of the Attorney General, who was of opinion that the work was a part of the agent's duty, and therefore the agent must do it whereupon the appellee employed other persons, whose assistance was necessary to the thorough performance of the duty, and entered upon the discharge of these newly imposed duties. It had become largely the custom in Louisville and Jefferson counties for persons who carried on business for which a license was required to operate the business without paying the license, and running on indefinitely without accounting to the commonwealth for the money due for conducting the business. This was especially true in the liquor business, but it was also true, though to a less degree, in every other business for which a license was charged. Now, appellee under the direction of the Auditor hunted up all such persons, and either by indictment or threat of the same forced them to take out a license; and, where they had been doing business for any length of time without a license, he required the county clerk to antedate it...
To continue reading
Request your trial
-
Chief Info. Officer v. Computers Plus Ctr., Inc.
...recoupment counterclaim); State Board of Regents v. Holt, 8 Kan.App.2d 436, 436–37, 659 P.2d 836 (1983) (same); Commonwealth v. Barker, 126 Ky. 200, 210–11, 103 S.W. 303 (1907) (same); State v. Hogg, 311 Md. 446, 471, 535 A.2d 923 (1988) (same), overruled on other grounds by Dawkins v. Balt......
-
Hann v. Venetian Blind Corporation, 880.
...like sufficiency as the law requires, if a new and independent action were brought by the defendant against the plaintiff. Com. v. Barker, 126 Ky. 200, 103 S.W. 303; Emmerson's Adm'r v. Herriford, 71 Ky.(8 Bush) 229; Ross v. Ross, 60 Ky.(3 Metc.) 274. The verdict of the jury must be respons......
-
French Republic v. Inland Nav. Co.
...like sufficiency as the law requires, if a new and independent action were brought by the defendant against the plaintiff. Com. v. Barker, 126 Ky. 200, 103 S.W. 303; Emmerson's Adm'r v. Herriford, 71 Ky. Bush.) 229; Ross v. Ross, 60 Ky. (3 Metc.) 274. The verdict of the jury must be respons......
-
State ex rel. State Highway Commission of N.M. v. Town of Grants
...98 Ark. 125, 135 S.W. 843, 33 L.R.A.,N.S., 376; State v. Hartford Accident & Indemnity Co., 136 Conn. 157, 70 A.2d 109; Commonwealth v. Barker, 126 Ky. 200, 103 S.W. 303; State v. Schurz, 143 Minn. 718, 173 N.W. 408; State v. Portsmouth Sav. Bank, 106 Ind. 435, 7 N.E. 379; Commonwealth v. B......