Shannon v. Wheeler

• Citation: 268 Ky. 25,103 S.W.2d 718
• Parties: SHANNON v. WHEELER.
• Decision Date: 26 March 1937
• Court: Court of Appeals of Kentucky

103 S.W.2d 718

268 Ky. 25

SHANNON v. WHEELER.

Court of Appeals of Kentucky

March 26, 1937

Appeal from Circuit Court, Franklin County.

Suit for writ of mandamus by Charles C. Wheeler, county tax commissioner of Jefferson county, against E. E. Shannon auditor of public accounts for the state of Kentucky, to require him to issue warrants. From a judgment in favor of the plaintiff, the defendant appeals.

Affirmed.

B. M Vincent, Atty. Gen., and M. B. Holifield, Asst. Atty. Gen for appellant.

Dodd & Dodd, of Louisville, for appellee.

PERRY Justice.

This is an appeal from a judgment of the Franklin circuit court, granting a writ of mandamus directed to appellant, E. E. Shannon, auditor of public accounts, ordering him to pay to appellee, Charles C. Wheeler, county tax commissioner of Jefferson county, the sum of $5,000 per month as an advancement upon office expenses and salaries of himself and deputies against later due assessment fees, in accordance with the provisions of section 4072, Kentucky Statutes.

The appellee, Charles C. Wheeler, was duly elected assessor of Jefferson county at the November, 1933, election and was inducted into office for a four-year term beginning January, 1934, and is now its duly qualified and acting tax commissioner.

The appellant, E. E. Shannon (defendant below), is the duly elected and qualified auditor of public accounts of and for the state of Kentucky and was duly elected such at the general November, 1935, election and inducted into office for a four-year term beginning January, 1936.

At the time of the tax commissioner's election, under and pursuant to section 4042a-1 and subsequent sections of the Statutes, it was made his duty to make up and return to the proper authorities the assessment books for Jefferson county, and for his duties so performed by him and his deputies he was allowed, as compensation, the statutory commissions therein provided.

The assessment roll in Jefferson county amounted to nearly $600,000,000, $340,846,930 of which constituted assessment values upon real estate, while the remainder of the assessment represented the value of personality and the actual expenses allowed to him for making said assessment, pursuant to said Statutes, amounted for the year 1935 to approximately $75,000.

Further, it appears by the record that the assessment roll for taxes for all purposes in Jefferson county will be increased for the year 1936 by the anticipated amount of some $10,000,000, which additional amount the commissioner will also be required to assess for such year, when the expenses therefor properly allowable under the Statutes to the petitioner for making such assessment will again amount to some $75,000.

Further, it appears that upon the appellee Wheeler's induction into office as tax commissioner of Jefferson county in January, 1934, section 4072, Kentucky Statutes, as amended by chapter 134 of the Acts of the 1928 Session of the General Assembly, was and is now in full force and effect, and by which it is provided that:

" Advancement to Jefferson county tax commissioner.--In counties containing cities of the first class, the county tax commissioner shall be entitled to receive an advancement of five thousand dollars ($5,000.00) per month to defray necessary official expenses and partial payment upon the salaries of himself and his deputies and assistants, and the auditor of public accounts shall on the first of each calendar month draw his warrant on the treasurer in favor of such county tax commissioner for such sum. The sum of such advancements shall be deducted from the total amount found to be due such tax commissioner when yearly settlements are made. Should the tax commissioner in such county die, resign or be removed from office, or should the office of county tax commissioner in such county for any cause become vacant, the sums advanced hereunder shall be deducted from the total sum due for making assessment."

Pursuant to the direction of this section of the Statutes, the appellant, E. E. Shannon, as state auditor, advanced (as had also his predecessor since the effective date of this 1928 amendment of the act) to the appellee tax commissioner the monthly sum of $5,000, as therein directed, from the time of his induction into office, beginning January, 1936, and on through the following months up to and including July, 1936, when he then and has since refused to advance to the appellee such monthly sum upon the expenses of his office and salaries of himself and assistants for the month of August and subsequent months and stated that he would continue his refusal to make such monthly advancements to him, unless ordered by the court to do so, basing his refusal upon the provisions of an act known as chapter 98, Regular Session Acts of the 1936 General Assembly, relating to revenue and taxation, which undertakes to repeal chapter 148, 1934 Acts of the General Assembly (section 4019, Kentucky Statutes [1934 Edition]), by providing that no state tax shall be levied, assessed, or collected on real estate.

Upon the auditor's thus refusing to issue the warrant for such advancement to the appellee tax commissioner for the month of August, 1936, he brought this suit for a writ of mandamus against the auditor, requiring him to issue the warrant for the month of August and like warrants for the subsequent months of his term of office.

Plaintiff in his petition alleged the above facts in substance and upon a demurrer being filed to the petition (but before same was passed on) he filed an amended petition, wherein the multiplicity of duties, conditions, and the daily requirements of his office, making its all-year operation necessary for the proper making up of the voluminous tax assessment rolls, were set out with more particularity, amply tending to show that due to the very complexity and extensive character of the work of the office it was necessary to adopt a different system of official routine for performing the exacting and intricate duties thus peculiarly adhering to the office of tax commissioner of Jefferson county, which was not applicable to nor required generally of the other county tax commissioners' offices.

The amended petition set out the following facts and conditions, which adhere to the Jefferson county tax commissioner's office and do not generally obtain to the office in the counties of the state not having a city of the first class, and which, it alleged, justifies and calls for an advancement to this one class of county tax commissioners and furnishes a natural and distinctive ground for its separate classification, as provided by section 4072, Kentucky Statutes: That the office of tax commissioner of Jefferson county had to be kept open the year round and that to perform the duties of the office it required the thirty-seven deputies and assistants allowed him; that the work of his office, by reason of its complexity and volume, called for full time of the tax commissioner and the the preparation of some thirty-four ledgers containing some 60,000 pages of written matter, for properly making up the tax rolls of the county; that in order to efficiently make said assessment and prepare said assessment rolls, the Jefferson county office found it expedient and necessary to make up and keep on hand 100,000 cards, known as real estate cards, some 75,000 cards, known as personality cards, and approximately 20,000 cards, known as intangible personality cards, which system of operation is necessary in order to properly prepare the data required by law in making up the tax rolls of the county; that in addition to these office requirements, the tax commissioner is further, in counties containing cities of the first class (as does Jefferson county), required to make up and keep some 90,000 automobile cards, in order to have properly valued and placed on the assessment rolls the automobiles owned by the taxpayers of said county; further, that the Jefferson county office is required to have made up before its deputies and filed approximately 65,000 schedules; and that at the time of the auditor's refusing to make the monthly advancement directed by the statute, supra, and his bringing of this suit seeking a mandamus therefore, he and his deputies were making up approximately 1,000 of such schedules per day; that his duties are different from those of the other county tax commissioners, and distinguish the office of county tax commissioner of Jefferson county from the offices of tax commissioners in other counties of the state containing no cities of the first or second class.

The general demurrer of the defendant auditor was then directed to the petition and petition as amended, when, after the hearing of argument and submission of the case, the trial court overruled the demurrer. Thereupon, the defendant declining to plead further, judgment was entered sustaining the prayer of the petition and granting a writ of mandamus, directing the auditor to draw his warrant upon the state treasurer for $5,000, payable to plaintiff, Charles C. Wheeler, for the month of August, 1936, and for each subsequent month of his term of office, in accordance with the provisions of the statute so directing.

Complaining of this judgment, the appellant auditor seeks its reversal chiefly upon the one ground that section 4072 of the Statutes, under which the petition and amended petition were drawn, is unconstitutional, in that (he contends) it is in direct contravention of subsections 18 and 29, section 59, of the Constitution. He also insists that section 1, chapter 98, Acts of 1936 (indirectly involved), in providing that no state tax shall be levied, assessed, or collected on real estate, is constitutional and therefore that the security for the...