Utz v. Wallace's Adm'x

• Decision Date: 19 May 1933
• Citation: 249 Ky. 296,60 S.W.2d 614
• Parties: UTZ, Sheriff, v. WALLACE'S ADM'X. SNYDER, Sheriff, v. SAME.
• Court: Kentucky Court of Appeals

60 S.W.2d 614

249 Ky. 296

UTZ, Sheriff, v. WALLACE'S ADM'X.

SNYDER, Sheriff, v. SAME.

Court of Appeals of Kentucky

May 19, 1933

Appeals from Circuit Court, Boone County.

Actions by D. B. Wallace's administratrix against L. T. Utz, and against Herbert Snyder, Sheriffs of Boone County. From a judgment for plaintiff, defendants appeal.

Affirmed.

Bailey P. Wootton, Atty. Gen., S. H. Brown, Asst. Atty. Gen., and Ben H. Riley, of Burlington, for appellants.

John M Lassing, of Burlington, for appellee.

HOBSON Commissioner.

These two appeals, turning on the same facts, are heard together. D. B. Wallace brought these actions against the sheriff of Boone county to restrain him from collecting an assessment of intangible personal property owned by Wallace amounting to about $250,000. The following agreed statement of facts was filed:

"Sometime prior to 1926, the plaintiff, D. B. Wallace, a resident of Walton, Boone County, Kentucky, and a property owner in Kentucky and also a property owner in the State of Florida desiring to change his residence from Kentucky to the state of Florida, consulted N.E. Riddell then County Judge of Boone County, Kentucky, as to the legal steps necessary to be taken to make said change and was advised by said Judge that there was no legal step to be taken in Kentucky, that if he desired to become a citizen of the State of Florida he must comply with the laws of that state as to citizenship and that when he became a citizen of the State of Florida he would automatically cease to be a citizen of the State of Kentucky. He thereafter located in the City of Tampa in the State of Florida and having lived for the length of time prescribed by law to entitle him to the rights of citizenship he applied to the board of Registrations and Elections and was given a registration certificate entitling him to vote in any and all elections in said state for the year 1926. He paid his personal tax to the State of Florida for the year 1926, and has annually since said date taken out certificate of registration and paid his personal property tax in the State of Florida. The registration certificates and tax receipts for the years 1926, 1927, 1928 and 1929 were filed by him in a suit instituted by the Commonwealth of Kentucky against him in which suit the commonwealth through its duly accredited revenue agent sought to compel him to list for taxation and pay the tax on certain personal property in Kentucky. He pleaded his residence in the State of Florida and on that issue the case was called for trial when and where the commonwealth failed to offer any proof and the following judgment was entered. 'No proof to sustain the petition was offered by the plaintiff and the defendant produced his registration certificate and also tax receipts showing he had registered and paid the taxes in the State of Florida and the court being advised adjudges that the petition herein and the same is dismissed.'

The plaintiff spends five or six months of each year at his home in the State of Florida and from six to seven months here in Kentucky, where he owns large holdings of real estate."

The assessments in controversy are those made as of July 1, 1928, and 1929. The act of the Legislature of March 21, 1928, is in these words:

"An Act relating to revenue and taxation, and defining what constitutes 'residence' for purposes of taxation of intangible property.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

§ 1. That any person who has had his actual or habitual place of abode in this State for the larger portion of the twelve months next preceding the date as of which an assessment is due to be made, shall be deemed a resident of this State for the purpose of...