Dunlap v. Littell
| Decision Date | 26 October 1923 |
| Citation | 200 Ky. 595 |
| Parties | Dunlap, County Clerk v. Littell, Tax Commissioner. |
| Court | Kentucky Court of Appeals |
Appeal from Grant Circuit Court.
CHARLES I. DAWSON, Attorney General, and MARTIN T. KELLY, Assistant Attorney General, for appellant.
MORRIS & JONES for appellee.
The appellee and plaintiff below, T. R. Littell, was duly elected to the office of assessor of Grant county at the regular election in 1917 and took the oath of office, as provided by law, on the first Monday in January, 1918. The legislature convened in regular session on the first Monday of the latter year, and on March 15, thereafter it enacted chapter 11, Acts 1918, page 31 (), whereby the office of county assessor was abolished under the power conferred by section 104 of the Constitution, and in lieu thereof the office of County tax commissioner was created. The prescribed duties of the newly created office were the same as theretofore performed and exercised by the abolished office. The county tax commissioner was made an elective officer to be elected at the same time that county assessors had theretofore been elected, but the act conferred the duties of the newly created office upon the then existing assessors for the various counties of the Commonwealth until the next regular election in 1921, and its tenure was made the same as that of the abolished assessors. If the legislature had the power to fill the created office with the then assessors of the counties until the 1921 election (a question not now decided), the effect of the act was to ipso facto clothe the new county tax commissioners with all the powers, duties and obligations of the county assessors then in office immediately upon the taking effect of that act, and in the same manner it bestowed upon the county tax commissioner all the perquisites of the office of the abolished county assessors, no more and no less. The act had an emergency clause and took effect and became a law on the date of its approval, March 16, 1918.
At that time chapter 10, Acts 1906, page 25 (), was the only law in this Commonwealth authorizing the assessment of dogs for taxation, and under its provisions it was the duty of the county assessor to assess dogs at the same time he assessed other property, and for which services there was no provided compensation, and the duty of the county assessor to assess dogs without compensation was the law at the time plaintiff was elected assessor in 1917 and at the time he became county tax commissioner under the 1918 act, supra. At the same 1918 session the legislature enacted chapter 112, 1918 Acts, page 483, which was an entirely new law with reference to the assessment of dogs, and it supplanted the 1906 act on that subject. That act was approved March 28, 1918, and had no emergency clause, which postponed its taking effect and becoming a law until ninety days after the adjournment of the session. Section 4 of that act provided that the owner of each dog should in person apply to the county court clerk of his county on or before January 1 each year thereafter and obtain a license for each dog owned by him according to the scale therein fixed, and section 16 provided that the assessors of each county at the time of assessing property for taxation should inquire of each person assessed the number of dogs owned by him and make a list of them and to afterwards furnish a copy of it to the county court clerk of his county and one to the state commissioner of agriculture, and further provided that he should receive as compensation for such listing ten cents for each listed dog. It will be observed that the latter act seems to ignore the fact that the office of tax assessor had been abolished, since it provided that the listing of dogs therein required should be performed by "the assessors in each county," instead of by the newly created office of county tax commissioner. But, whether that fact should have any bearing upon the question here involved, we need not determine, except in so far as it may throw light on the question that the legislature regarded the two officers as being one and the same with only a change in name.
By chapter 157, Acts 1920, page 676, sections 15 and 16 of the latter 1918 act were repealed and re-enacted and it was therein provided that the county tax commissioner should receive as compensation for listing dogs only five cents per head instead of ten cents, as provided by the amended act. At that time plaintiff was serving his county as county tax commissioner under his installation into that office by the first 1918 act, and would continue to do so until the first Monday in January, 1922, when his successor, elected at the regular election 1921, would succeed him. After finishing his assessments for the year 1920, he presented to the county court clerk of Grant county his claim for $100.30 for listing 1,003 dogs in the county at ten cents per head, which was after the taking effect of the 1920 act. The county court clerk refused to pay him exceeding five cents per dog listed by him, and he filed this action in the Grant circuit court against the county court clerk (appellant and defendant below) praying that he be mandamused and ordered to pay the claim at the rate of ten cents per listed dog. His petition averred the facts, as hereinbefore recited, and defendant filed a demurrer thereto, which the court overruled and entered judgment according to the prayer of the petition, which defendant seeks to reverse by this appeal.
It is the contention of the Attorney General, who briefed the case for the defendant, that the court erred in overruling the demurrer to the petition because (1), chapter 11, Acts 1918, created a new county office which it could not fill by appointment, since that would be the exercise of executive or ministerial powers by the legislature contrary to the provisions of sections 27 and 28 of the Constitution, as was held by this court in the case of Breckinridge v. Pratt, 112 Ky. 1, and in the more recent one of Sibert v. Garrett, 197 Ky. 17; (2) that if correct in reason (1), then plaintiff was only a de facto officer at the time he performed the services for which he claims compensation, and that while the acts of such an officer are valid as to third persons he is not entitled to the emoluments of the office and may not enforce the collection of its attached salary or accompanying fees, as was held by this court in the cases of Eubanks v. Montgomery County, 127 Ky. 261, 128 Am. Rep. 340, 16 Ann. Cas. 483, and Nagel v. Bosworth, 148 Ky. 807; and (3), that whether plaintiff continued to act as assessor of his county after the creation of the office of county tax commissioner or to act in the capacity of the latter officer after that time, it was not within the power of the legislature to change his salary or the fees of his office after his installation either by increasing or by diminishing it, or them, and on that account he was not entitled to even the ten cents provided for the listing of dogs by the later 1918 act, and not being so he can not complain of the reduction of the fees for that service made by the 1920 act; and in support of the third position the cases of James, Auditor v. Duffy, 140 Ky. 604; Green v. Cohen, 181 Ky. 108, and Neutzel v. Fiscal Court of Jefferson County, 183 Ky. 1, and many others from this court are cited.
Counsel for plaintiff make no reference in their brief to reasons (1), and (2), urged by the Attorney General, nor do they deny the correctness of reason (3), but seek to avoid it by insisting (a), that the first 1918 act abolished the old office of county assessor and created the new one of county tax commissioner, and that the second 1918 act providing for the fee of ten cents for each dog listed by the incumbent of the newly created office having been passed at the same session of the legislature must, under the pari materia doctrine, be read in connection with the prior act creating the office and be construed as a part of it as though the later act had been passed at the same time, and by reason thereof all of its provisions were thereby incorporated into and became parts of the first act; and being so, they then argue that plaintiff's right to collect the ten cents fee for the services rendered became and was a part of the emoluments of the office of county tax commissioner at the instant he became such, and that his right to thereafter charge and collect the fee continued throughout the period of his legislative designation and could not be changed or altered by the legislature at any time, under the doctrine of the cases, supra, during that period, and as a consequence the 1920 act was inoperative as to him.
They further urge in avoidance of contention (3) made by the Attorney General, (b), that the later 1918 Act, imposing the duty on the county assessors to make a list of the dogs in their county, imposed new duties for which plaintiff was entitled to additional compensation under the opinion of this court...
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