James, State Auditor, v. Barry

• Citation: 138 Ky. 656
• Parties: James, State Auditor v. Barry.
• Decision Date: 08 June 1910
• Court: Court of Appeals of Kentucky

Page 656

138 Ky. 656

James, State Auditor v. Barry.

Court of Appeals of Kentucky.

June 8, 1910.

Appeal from Franklin Circuit Court.

R. L. STOUT, Circuit Judge.

Judgment for plaintiff, defendant appeals. — Reversed.

JAS. BREATHITT attorney general, JOHN F. LOCKETT assistant attorney general for appellant.

EDWARDS, OGDEN & PEAK for appellee.

OPINION OF THE COURT BY JUDGE O'REAR — Reversing.

Appellee was elected assessor of Jefferson county at the November election of 1909, and was inducted into office the first Monday in January, 1910. At the time of his election the law fixed his compensation as follows: "The assessor shall, after he has returned his tax book and the same has been corrected by the board of supervisors, present to the county court his account, verified by affidavit, stating the total assessed value of the property listed by him as shown by his tax book thus corrected; and if said court, upon investigation, finds said account to be correct, it shall certify to the Auditor the amount due to the assessor for the services required of him by law which shall be based on the total value of the assessment made by him as above required, as follows: Four cents on the one hundred dollars of the first million, and one and one-quarter cents on each one hundred dollars of the excess over one million, but no assessor shall be entitled to receive more than four thousand dollars for his services during any year. In counties where the assessed value of property exceeds thirty-eight millions of dollars, the assessor shall be allowed, as compensation to deputies appointed and qualified, the sum of one thousand five hundred dollars for each seven and one-half million of dollars of property which may be assessed in excess of the thirty-eight million dollars. In counties where the assessment does not exceed one million dollars, the assessor shall be paid four and one-half cents on the one hundred dollars of the entire property listed." He was then, and is yet, required to "begin the duties of his office on the first Monday in September in each year" (section 4046, Ky. St. [Russell's St. sec. 5937]), as of which date all property which he is required to assess is listed with him. Section 1777, Ky. St. (Russell's St. sec. 2748), provides that, in counties having a population more than 75,000, the assessor may have certain deputies or assistants, whose compensation is to be fixed by an order of the county court, but providing that the total amount allowed for salaries of the assessor and his deputies shall not exceed the sums stated in the statute, nor in the aggregate the compensation allowed by law. By section 4072, Ky. St. (Russell's St. sec. 5964), which was section 32, art. 2, c. 22, of an act entitled "an act relating to revenue and taxation" which became a law March 15, 1906, it was provided that certain deductions were to be made from the assessor's compensation for failure to properly return the lists, and then required the Auditor of Public Accounts to draw his warrant on the State Treasurer for 80 per cent. of the allowance made to the assessor for his compensation, and, after the October term of the fiscal court and after corrections and deductions were provided against, for the remainder. By an act of the Legislature approved March 7, 1910, section 32, art. 2, c. 22, Act March 15, 1906 (now section 4072, Ky. St. Carroll's), was amended so as to add the following: "In counties containing a city of the first class, on the first of March, 1910, and the first of each calendar month thereafter, the Auditor of Public Accounts shall draw his warrant on the Treasurer for fifteen hundred dollars, which shall be paid to the county assessor, said fifteen hundred dollars being an advancement by the Commonwealth of Kentucky to the assessor to defray necessary office expenses and partial payment upon the salaries of himself and deputies. Said sums shall be deducted from the total paid the assessor by law when the yearly settlements are made. Should the assessor die, resign, or be removed from office, or should the office of assessor in counties containing a city of the first class for any cause become vacant, the sums deducted hereunder shall be deducted from the yearly settlement when said settlement is made."

Appellant having refused to issue the warrant for the $1,500 provided for in this act for the month of April, 1910, appellee brought this suit for the issual of the writ of mandamus against the Auditor, requiring him to issue the warrant and like warrants for the subsequent months. The Auditor contends that the act is unconstitutional for various reasons, and particularly because it violates section 59 and 60 of that instrument inhibiting special or local legislation, as well as sections 161 and 235 forbidding the change of the salaries of public officers after they shall have been elected. The decision of both the points raised seem to us to be proper. Both are directly presented. The second point advanced, though it may be sufficient for the decision of appellant's case, would leave the statute unimpeached as to his successor in office. The Constitution itself expressly and in a number of instances recognizes the practical differentiation resting upon number and density of population. For example, provisions are made for cities and towns where they are not applied to rural communities; again, different provisions are made for different sized cities and towns, as well as for counties having different aggregates of population and wealth. Indeed, the Constitution itself provides for the classification of cities and towns in six different classes, and so required as to number of population that it was impossible when the Constitution was adopted, as well as unlikely for quite a while thereafter, that there would be but one city of the first class, and but one county having a population of 75,000 or more. From these facts it is argued in this case, an argument repeated whenever local or special legislation of the inhibited class is attempted in behalf of certain localities, that inasmuch as the constitutional convention recognized the various classifications of cities as a proper basis for governmental purposes, whenever the Legislature follows the same classification it is for that reason alone legitimate.

For certain purposes classification by population and its density are not only natural and logical, but any other basis would be unscientific and unsatisfactory. It has therefore been held frequently that general laws which are by their terms restricted in their operation to cities of the first class in this state, when it was then a notorious fact that there was but one such city, were not in violation of the provisions against local legislation. But it was always pointed out, or plainly to be seen, that the legislation was also of a class which it was legitimate to classify upon the basis of population. On the other hand, instances have occurred where it was attempted to classify subjects by the sizes of cities where the question of the density of population had no appreciable relevancy to the subject. Such, for example, making a statute of six-month limitations to actions of tort or for salaries against a city of the first class, whereas the general law was one year, or five years. City v. Kuntz, 104 Ky. 584...