Oates, Com'R, v. Simpson, Tax Com'R

• Decision Date: 25 June 1943
• Citation: 295 Ky. 433
• Parties: Oates, Commissioner, et al. v. Simpson, Tax Com'r, et al.
• Court: United States State Supreme Court — District of Kentucky

295 Ky. 433

Oates, Commissioner, et al. v. Simpson, Tax Com'r, et al.

Court of Appeals of Kentucky.

June 25, 1943.

1. Statutes. — The literal language contained in some parts of statute in apparent conflict should surrender to general purpose of the legislature as gathered from all parts of the statute.

2. Taxation. — Under statutes prescribing duties of county tax commissioners and fixing their compensation as a commission based upon total assessed value of property listed by them, commissioners are not entitled to their statutory commission on exempt personal property not exceeding $250 to a taxpayer with a family, which amount is exempt from taxation to such class of taxpayers by Constitution. KRS 132.420, 132.450, 132.590; Constitution, sec. 170.

3. Statutes. — Where statutes substantially similar to present statutes prescribing duties of county tax commissioners and fixing their compensation as a commission based upon total assessed value of property listed by them had been contemporaneously construed since 1918 by all administrative officials having duties to perform thereunder and by the Attorney General as not entitling commissioners to a commission on exempt personal property not exceeding $250 to a taxpayer with a family, which amount is exempt from taxation to such class of taxpayers by Constitution, present statutes would be given a similar construction. KRS 132.420, 132.450, 132.550, 132.590; Constitution, sec. 170.

Appeal from Franklin Circuit Court.

Earl S. Wilson, Assistant Attorney General, for appellants.

S.H. Brown for appellees.

Before Wm. B. Ardery, Judge.

OPINION OF THE COURT BY JUDGE THOMAS.

Reversing in part and affirming in part.

The appelles, U.J. Simpson, Tax Commissioner of Grayson County, and others who are tax commissioners of their various counties, suing for themselves and others in the commonwealth similarly situated, filed this declaratory judgment action in the Franklin circuit court against the Commissioners of the State Revenue Department and the State Tax Commission, in which they sought the opinion of the court as to whether or not they were entitled to their statutory commission on exempt personal property not exceeding $250 to a tax payer with a family, which amount is exempt from taxation to such class of tax payers by section 170 of our Constitution. Plaintiffs (appellees) contend and so allege in their petition that under the provisions of sections 132.420 and 132.450 of KRS, they, as tax commissioners for their respective counties, are required to "assess all the real and personal property in his county at its fair cash value;" also, that by the provisions of section 132.590 of the same publication they are required to return their assessment books to the county court clerk of the county with an affidavit showing that it contained "the total assessed value of the property listed by him as shown by his assessment books," and that the county court clerk after proving same shall "allow eighty percent of the amount due him, based upon his assessment." They, therefore, contend that, since they are required to assess all property in their respective counties and that the county court clerk, when their assessment roll is turned over to him, shall allow eighty per cent of the commissions due the assessor, based upon valuation of the property made by him — including the $250 exemptions to housekeepers with families, which, under the provisions of the statute, is later deducted by the county court clerk before submitting the assessment to the State Revenue Commission for its supervision and corrections after the County Board of Equalization has acted upon the total assessments of the county — they should receive compensation for the gross amount of their listings.

In addition to asking for a declaration of the court upon the question above stated plaintiffs also sought to recover all commissions so accruing to them under their theory of the law, for the past five years, which, of course, is done without any application to the proper county authorities to surcharge the various settlements made by them within that time, and in which they were disallowed commission for the assessment of the exempted item of property supra. It is, therefore, doubtful if such a right of recovery may be obtained in a declaratory judgment proceeding when there is an open and efficient remedy to the litigant seeking such declaration in a court having jurisdiction of the subject matter. But in view of the conclusion we have reached it will be unnecessary to discuss or determine any of the questions raised by that part of the petition relating to the recovery of compensation for the past five years.

The court on submission declared that plaintiffs were entitled to their percentage compensation on the $250 exemption referred to, and which was based solely upon the literal language of the sections of the statute, supra; but the court rejected plaintiffs' contention that they were entitled to recover for any past due compensation which had been disallowed in each annual settlement they made. From that judgment defendants and appellants prosecute this appeal, and from the ruling of the court disallowing recovery for alleged past due compensation plaintiffs moved for and obtained a cross appeal in this court.

On October 20, 1904, this court handed down its opinion in the case of Powers v. Osbon, 118 Ky. 810, 82 S.W. 419, which was a suit by the then tax assessor, F.M. Powers, of Menifee county, in which he sought for himself and others in the commonwealth similarly situated the right to compensation on the $250 exemption to housekeepers made by section 170 of the Constitution, but which had been disallowed him by the proper county authorities, and he sought by his mandatory action to require such authority to certify his claim, based on such exemption, for payment. The Menifee court dismissed his petition and that judgment was affirmed in the opinion rendered on that appeal.

Plaintiffs' learned counsel seek to distinguish that case from the instant one — basing the distinction on the different phraseology of the statutes relating to the question as it existed at the time that opinion was rendered and the same statutory language now in existence, and found in the sections of KRS, supra. The law as it existed at that time was contained in section 4052 of the 1903 and 1909 editions of Carroll's Kentucky Statutes, which read: "All taxable estate shall be assessed and valued as of the fifteenth of September in the year listed, and the person owning or possessing the same on that day shall list it with the assessor, and remain bound for the tax, notwithstanding he may have sold or parted with the same." The next section (4053) said, in substance, that the assessor from his knowledge — plus the statement made to him by the persons whose property was being assessed, and from other evidence that he may obtain upon the oath of witnesses — "shall fix the value upon all the estate listed with him for taxation at its fair cash value," etc. The section then proceeds to fix the rate of compensation as designated therein. Section 4072 of the same editions of the statutes prescribes, inter alia, that on presentation to the Auditor for payment that officer "shall draw his warrant on the State Treasurer for eighty per cent of such allowance, and shall draw his...