Harrison v. Commonwealth

• Decision Date: 18 June 1885
• Citation: 83 Ky. 162,7 Ky.L.Rptr. 74
• Parties: Harrison, & c., v. Commonwealth.
• Court: Kentucky Court of Appeals

83 Ky. 162

7 Ky.L.Rptr. 74

Harrison, & c., v. Commonwealth.

Court of Appeals of Kentucky.

June 18, 1885

APPEAL FROM LOUISVILLE CHANCERY COURT.

GOODLOE & ROBERTS FOR APPELLANTS.

1. An order of the county court allowing an assessor's claim is a judgment, and can not be collaterally attacked, the jurisdiction of the county court as to that matter being unlimited. (Commonwealth v. Cain, 80 Ky. 318; Jacobs' Adm'r v. L. & N. R. R. Co., 10 Bush 369.)

2. The act of April 24, 1880, in so far as it attempts to authorize a collateral attack upon orders of courts allowing claims, is unconstitutional. (Cooley's Const. Limit., pp. 503, 504 and notes.)

3. It was the duty of the Commonwealth, through its authorized agents, to see that no more was allowed or paid the assessor than he was entitled to, and the surety of the assessor is therefore, not liable for the excess paid. (Calloway v Snapp, 80 Ky. 565.)

4. After the Auditor has passed a claim all questions of error and illegality are " closed out and concluded," and the claim can then be attacked only for fraud.

5. The act of calling on a person, swearing him and listing his name entitles the assessor to the compensation fixed by the statute, although the person " " listed" has neither property nor family. This has been the practical construction placed upon the law for years, and it has been acquiesced in by all departments of the government. (2 Morehead & Brown, 1370, 1371, 1376, 1380; 3 Statutes of Ky. (Loughborough), pages 514, 519; 2 Revised Statutes, pages 248-9, 252, 253; General Statutes, chapter 92, section 8.)

6. The long continued practical construction of the statute should prevail. (Smith on Constitutional Construction, section 624, page 741; Warfield's Will, 22 Cal. 71; Barbour v. City of Louisville, 83 Kentucky, --; United States v. Moore, 95 U.S. 763; Bridgeford & Co. v. Newman, MS. Opinion, 1880; Pennington v. Woolfolk, 79 Kentucky, 19.)

7. A statute should be construed according to its equity and its reason, and not according to its letter.

ISAAC T. WOODSON ON SAME SIDE.

The practical construction placed upon the statute for such a long period, and acquiesced in by the law-making power, should control. (Surgett v. Lapice, 8 How. (U. S.), 71; United States v. Pugh, 99 U.S. 265, 269; United States v. Lytle, 5 McLean, 17; Maloney v. Mahar, 1 Mich. 26; McKeen v. Delancy, 5 Cranch, 22; Union Insurance Co. v. Hoag, 21 How. (U. S.), 35; Williams v. Dayton, 55 N.Y. 378; Story on Constitution, 408; Sparrow v. Kingman, 1 N.Y. 260; Pratt v. Brown, 3 Wis. 609; Cooley's Const. Lim., page 65; 1 Kent's Commentaries, page 475; Yerger v. Allen, 1 Yerg., 376; Pennington v. Woolfolk, 79 Ky. 25; Commonwealth v. Whipps, 80 Ky. 280.)

THOMAS F. HARGIS AND T. L. BURNETT, OF COUNSEL FOR APPELLANTS, ARGUED ORALLY.

Briefs not in record.

P. W. HARDIN, ATTORNEY-GENERAL, AND HELM & BRUCE FOR APPELLEE, IN PETITION FOR REHEARING.

Brief not in record.

1. As to rules for the construction of statutes. (Boston v. Smith, Walker's Ch'y (Mich.), 395; Bosley v. Mattingly, 14 B. Mon., 73; U. S. v. Warren, 4 McLean, 460; Allen v. Mutual Fire Ins. Co., 2 Maryland, 120; Rex v. Poor Law Commissioners, 1 Neville & Perry, 375; Bartlett & Waring v. Morris, 9 Porter (Ala.), 258; Paulina v. U.S. 7 Cranch, 52; Barker v. Estey, 9 Vt. 138; Pierce v. Atwood, 13 Mass. 343; Nichols v. Wells, Sneed, 259; Manser v. Chester, 22 Pick., 387; Holbrook v. Holbrook, 1 Pick., 250; Evans v. Jordan, 9 Cranch., 203; Jarot v. Jarot, 2 Scam., 11; Weathers v. Stewart, Cain's Cases, 54; Way v. Cary, 1 N. Y. Term Rep., 191.)

2. As to the meaning of the word " property." (Conn v. Jones, Hardin, 8; Neyfong v. Wells, Ibid., 562; Holbert v. Dearing, 4 Littell, 9.)

3. No instance can be pointed out where the words " taxable property," as used in the General Statutes, mean any thing except property from which taxes can be collected.

Fifty-seven instances cited where, as counsel contend, from the context of the section in which the words are used, the idea is excluded that any thing is meant except property from which taxes can be realized.

4. If the judgment is to stand reversed the court should remand the case, with directions simply to overrule the demurrer to the answer, thus giving the plaintiff an opportunity to amend. (Bullitt's Code, section 133; Baker & Rubel v. Whipps, MS. Op., 6 Ky. Law Rep., 307.)

OPINION

HOLT JUDGE:

The assessor of Jefferson county returned upon his books for 1883 a report, in accordance with the statutory form, as to 76,205 persons, of whom only 21,232 owned any taxable property.

The number returned by him in 1884 was 78,343, of whom but 21,871 had any estate; but the entire number returned for both years were either tithables or property owners, and the question is now, for the first time, presented to this court, whether an assessor is entitled, under the statute, to pay for each and every list taken by him, whether it embraces property or not? Its decision involves the construction of the statute, which provides that " the amount allowed shall not exceed fifteen cents for each person's list of taxable property, and the same shall be paid by the Treasurer upon the warrant of the Auditor." (Gen. Stat., chap. 92, art. 5, section 8.) The form prescribed by it, and the blanks in accordance therewith which are furnished to the assessor, contain forty-five items as to which the person being listed must make answer, under oath to be administered by the assessor; and he can not return any one as delinquent, without first applying at his residence for his list; nor is he entitled to any compensation until he makes oath that the person " rendering the list" made oath to its truth. It is urged, upon the part of the State, that a blank space, where the items of property are to be enumerated in case the person being listed owns them, is not a " list of taxable property; " that these words in the statute divest it of all doubtful import, and that they must be disregarded in order to allow the assessor pay for taking the list of one who has no estate. Upon the other hand, it is asserted that when the officer has taken the sworn statement of the person liable to pay tax, in accordance with the statutory form, that it is, in legal contemplation, his " list of taxable property," although, in point of fact, it embraces no property. For instance, his name is first entered; and even if he has no property, yet the assessor must enter his statement, upon oath, as to the number of his children, if any, between six and twenty years of age, and the other items or information as required by the form; and it is insisted that when this has been done it is his " list of taxable property," within the meaning of the law.

A brief review of the former legislation upon the subject, and the light in which it has been regarded by those charged with its execution, will aid in arriving at a correct conclusion.

The form for the list, prescribed by the act of January 13, 1814, enumerated twenty-two items; and by the act of February 2, 1819, entitled " An act to alter the mode of taking in lists of taxable property, " and in the body of which is found the expression " list of taxable property," the commissioner of tax, as the assessor was then called, was allowed such compensation as the county court might see proper to certify to the Auditor.

This was changed by the act of January 29, 1829, which, like the present law, provided " that it shall be the duty of such commissioners to apply at the residence of every individual in his county or district, liable to taxation, for his list of taxable property, " and allowed not exceeding five cents for each list taken by " the commissioners of taxable property. "

By the act of January 4, 1840, entitled " An act to change the form of the commissioners' books of taxable property, and to regulate the duties of the commissioners of tax, and other officers, in relation to the same," a new form, containing twenty-nine items, was provided; and it, by way of illustration, gives the names of supposed persons and their lists, and the last one named is " " Peter Mosby," whose list is an entire blank, save the statement that he is a white male, over twenty-one years of age, and has six children between seven and seventeen years of age. By an act approved March 3, 1842, it was provided that the county courts should make allowances to " commissioners of taxable property " of not more than eight cents for each list; and by the Revised Statutes, adopted in 1852, the same pay was allowed for " each list of taxable estate. " They also prescribed a new form of assessment, of thirty-five items, and interchangeably speak of it as a list of " taxable property" or " taxable estate; " and section 14, article 6, chapter 83, required the person giving the list to enumerate, as a part of it, the estate owned by him, and taxed in any other State. The General Statutes, adopted in 1873, provide still another form, and which is the one now in force, and which furnishes to the State, when returned by the assessor, much valuable information, aside from taxation. By it the number of voters; the number of children between six and twenty years of age; and many other facts necessary to the existence of the State, and the proper conduct of its affairs, are ascertained; and this list is repeatedly spoken of in the statute now in force, as it was in the previous ones, as the " list of taxable property."

The expression read in the light of all the previous legislation leads to the conclusion that the allowance to the assessor does not depend...