Hoke v. Commonwealth

• Decision Date: 03 December 1881
• Citation: 79 Ky. 567
• Parties: Hoke v. Commonwealth.
• Court: Kentucky Court of Appeals

79 Ky. 567

Hoke v. Commonwealth.

Court of Appeals of Kentucky.

December 3, 1881.

APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.

BYRON BACON AND BIJUR & DAVIE FOR APPELLANT.

ALEX. HUMPHREY AND RUSSELL & HELM FOR APPELLEE.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

The relator, S. M. Barker, filed this petition in the Jefferson court of common pleas, in the name of the commonwealth, asking a mandamus against W. B. Hoke, as judge of the Jefferson county court, compelling the latter to act on the information given him with reference to the failure of one Keegan to list his property for taxation.

S. M. Barker, at whose instance this proceeding is had, was appointed by the Auditor Auditor's Agent, under an act of the general assembly, approved April 29th, 1880. By virtue of the provisions of that act, the duty is imposed on the agent of filing information against those who have not given in a proper list of their taxable property, so as to enable the county court to require the payment of taxes upon it.

It is alleged in the petition that such an information had been filed in the county court of Jefferson county against Keegan, and the judge of that court had refused to hear the complaint of the commonwealth on the ground that the act was unconstitutional. It is also alleged that it was the duty of the court under the act to assess the property for taxation, if, upon the hearing, it should be made to appear that the owner had failed to list it, or to pay the state the taxes.

There was a demurrer filed to the petition, and also an answer, in which it is alleged that the county court refused to hear the case because he deemed the information insufficient. This answer, unexplained, might present an obstacle to the proceeding by mandamus to compel action on the part of the county judge; but the opinion delivered by him in that case, or the reason for not proceeding to hear the case, is, that the act being unconstitutional, the court had no power to proceed under it, and such we understand to be the position of counsel in the oral argument of this case. So the question will be treated as if the court had refused to proceed when the commonwealth made out the case upon the ground the act was unconstitutional, and the court had no power over it.

The judge of the circuit court, in awarding the mandamus, did not undertake to direct the county court as to the manner in which the discretion of that court should be exercised, but left all such questions to be considered when the facts of the complaint are made known.

All that is required of the county judge by the mandate from the superior court is, that he shall take cognizance of the case for the purpose of determining whether the information is true or false. The listing of the property by the county judge and ascertaining its value are essentially ministerial acts, and all that the circuit court judge has said is, that it is the duty of the county court to hear the complaint when properly made.

The constitutionality of an enactment conferring on the county court the power to assess the property of delinquents was expressly decided by this court in the case of Pennington v. Woolfolk, 79 Kentucky Reports. It was there held that ministerial and judicial powers were blended in that tribunal, and to hold otherwise would divest it of a jurisdiction always recognized, and render invalid many of the statutes giving it a supervisory power in a ministerial character over county officials.

This power of the county courts over delinquent taxpayers has existed by reason of legislation since the formation of the state government, and such jurisdiction, when properly conferred, has always been recognized, not only as constitutional, but as vested in a tribunal peculiarly adapted to the proper determination of all such questions.

The awarding of the mandamus was therefore proper, unless other constitutional inhibitions have been disregarded in the enactment of this law. It is insisted the act is unconstitutional: 1. Because the subject of the act is not expressed in the title. 2. The agent Barker is not an officer, for the reason there is no term fixed for the office. Because it confers on the department of Auditor the duties, powers, and emoluments of the county assessor.

Article 2 of section 37 of the state constitution provides, that "no law enacted by the general assembly shall relate to more than one subject, and that shall be expressed in the title." The act under consideration is entitled, "An act authorizing the Auditor to appoint agents to attend to revenue matters." It is urged in argument, that in reading the title of this act the mind would be led to the conclusion that it was merely an act to relieve the Auditor from the burden of the revenue department by allowing him to appoint agents or assistants in such counties as he might see proper.

We concur with counsel that such would be the conclusion, but it would suggest, in addition, an inquiry as to the power conferred on the agent, and the business he was authorized to transact with the department in order to relieve the Auditor. The latter, by article 10 of chapter 92, General Statutes, had been clothed with the authority of receiving from banks and other like corporations the amount of taxes due for each year, and of receiving reports from railroad and turnpike road companies, so that their taxes might be paid directly into the treasury; and in the attempt to collect from the delinquent tax-payer, it was manifest that the Auditor could not leave his office for the purpose of visiting each county, so as to file an information against those who had avoided the payment of tax; and to relieve him of this duty, he was empowered to employ agents to discharge such duties, and these agents, when appointed, were at once connected with his department, and subject to his control.

The Auditor is the head of the department, with clerks and agents under him, all of whom are guided by him in the discharge of their respective duties, and the very purpose of the act was to require this agent, the appointee of the Auditor, to perform certain minor ministerial duties outside the doors of the office that the Auditor was not expected or required to perform.

The title Auditor's Agent was itself suggestive, to any mind acquainted with the past legislation of the state, as to the duties conferred by the act; and while such a title may not be sufficiently comprehensive to direct an inquiry as to the power conferred, it was certainly suggestive; and when you add to it the words, "to attend to revenue matters," it would certainly induce the legislator to examine its provisions with a view of ascertaining what matters pertaining to the revenue this agent, when appointed, was required to look after.

It is insisted, however, the agent is required to perform the duties that the Auditor (his principal) cannot exercise, and acting independently of the Auditor. The title of the act does not indicate the exercise of a power by the agent that is withheld from the principal. It was certainly not expected that the Auditor could discharge, in person, all the duties pertaining to his office, and necessary to the collection of the tax from the delinquent tax-payer; and therefore the agent had assigned to him certain specified duties that are not required to be performed by his principal.

The act conferring these powers on the agent does not create an independent office, or make the action of the Auditor subordinate to that of the agent. On the contrary, the agent holds his office at the mere will of the Auditor, and is subordinate to the will of the latter in all his actions with reference to the revenue.

The very language of the act, as well as the title, was designed to make the agent subordinate to his principal. He appoints him in the first place, takes from him a bond, and the result of all his action, whether in the county court or elsewhere, is required to be certified to the Auditor. He can remove him at his will, and the mere fact that the Auditor is not to proceed in person to give the information to the county court, or to recover the money from the taxpayer, if paid without the information, does not create an independent office. The entire supervision of the revenue department, so far as these agents are concerned, is under his control; and conceding the fact that he is not authorized to discharge some of the duties imposed on these agents, and still the title of the act is not misleading.

This court, in the case of Phillips v. the Cincinnati and Covington Bridge Company, reported in 2 Metcalfe, in discussing the object and effect of the constitutional provision in question, said: "It should not be so construed as to restrict legislation to such an extent as to render different acts necessary when the whole subject-matter is connected, and may be properly embraced in the same act." And again: "None of the provisions of a statute should be regarded as unconstitutional when they all relate directly or indirectly to the same subject, have a natural connection, and are not foreign to the subject expressed in the title."

In the case of the Louisville and Oldham Turnpike Road Company v. Ballard, 2 Metcalfe, it is said: "A more liberal construction of this clause of the constitution will be not only more consistent with the objects intended to be accomplished by it, but will be found necessary in the practical business of legislation."

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