Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

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repeal all laws now in force whereby revenue is collected
from the assessment of real estate, personal property, and
privileges," has been declared unconstitutional and void.
This act proposed to regulate sales of real estate for taxes,
and by section 86 fixed the fees of the " trustee, clerk, and
printer" on all sales of land to the treasurer of the State,
and directed the comptroller to issue his warrant for the
same. By this section the clerk's fee was fixed at fifty cents
for each separate tract, lot, or parcel of land.

The act of 1881, approved April 7, fixed the rate of taxa-
tion of property, and defined what privileges should be sub-
ject to privilege tax, and was an amendment to the act of
1879 ^^ some of its features.

By the revenue act of 1883, approved March 30th of that
year, a complete system for assessment and collection of
revenues of the State, counties, Jnd municipalities was en-
acted by the Legislature, which, among other things, pro-
vided for sale of real estate by the tax-collectors, and a report
to the circuit court in section 73, as follows : ** That when
sales have been completed, and within thirty days after the
first Monday in July of said year, the tax-collector of each
county shall certify all of said sales to the circuit court of his
county." The form of such certificate is given, and then it is
provided, " said court, if in session, or if not in session, then
at next term of said court, shall enter said sales of record as
valid judgments, vesting title to the property so sold in the
purchaser thereof, and writs of possession shall be granted to
the purchasers during said term, or at any time on demand,
whether said purchaser shall b'e any person, company, firm
or corporation, or the treasurer of the State." By section
85 of this act it is provided " that the comptroller of the
treasury shall issue his warrant for the fees of the trustee,
clerk, and printer on all sales of land to the treasurer of the
State, said fees to be as follows : Printer's fee of five dollars
for notice in section 68 ; clerk's fee and trustee's fee each
fifty cents for each separate tract, or lot, or parcel of land.*'
The 87th section then repeals chapter 81 of act of 1875,
chapter 73 of act of 1877, chapter 245 of act of 1879, ^^^P"
ter 171 of act of 1881, and all other acts in conflict with this

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The duties required of the clerks under the act of 1883
are precisely the same as those required by the act olkek's fkb
of 1 88 1. The fees for the service by the clerk are ^wt^m ?f-


the same in both acts. The Lregislature, in repeal- «^^
ing all these acts, certainly knew there were taxes in process
of collection for 1882, which had been enforced by sales of
land, and that clerks had rendered service in such cases, and
the treasurer of the State had become the purchaser. Con-
cede the sales were invalid because the law under which the
taxes had been assessed or the property valued for taxation
was void, and the sales, therefore, gave no title ; still, it can-
not be presumed it was intended that these clerks should
receive no compensation for work honestly done.

The compensation of the clerk or other officer in such
cases does not depend on the validity of the sales made, as
held by this court in Akers and Union & American Publish-
ing Company v. Burch, \2 Heis. 611, 612. Judge McFar-
land says, in that case: " We conclude, therefore, that the fact
of an actual sale and purchase in the name of the treasurer
is sufficient, and we hold this the more readily as these claims
do not depend upon the validity of the sale."

It is conceded, however, that no public officer can receive
as fees anything but by a provision of law fixing statutb must
such fees. But when this service was done the act wacT"" **'^"^"
of 1883 was in force, which provided a fee for such service,
and it may well be held to include all such service done after
its passage in favor of a meritorious claim ; especially as by
that act all the previous laws on the subject were repealed,
and the rule prescribed in this act left alone to regulate such
compensation. This may not be a strict construction, but it
is a fair one, and reaches the rig;ht of the case.

The judgment of the court below will be affirmed, with

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Town of Bakersfield.

{Advance Case, Vermont, January, 1885.)

A lister can recover only such compensation for his services as the
town votes him» in a case where long usage is not an element.

General assumpsit. Plea, general issue and notice. Trial
by court, September term, 1884; Royce, Ch. J., presiding.
Judgment for the defendant

The action was brought to recover pay for the plaintiffs
services performed as lister. He was elected one of the listers
of the defendant town at the annual March meeting in 1882,
accepted the office, and rendered the services charged in his
specification. The court found that the amount charged was
reasonable, and that the plaintiflF should recover it, if he was
entitled to recover anything. The plaintiff's specification was :
" Twenty days' services as lister, and expenses of self and team,
$40; maJcing list for said town, $10 ; two days' expenses, self
and team, at St. Albans before equalizing the board, $10,"
making $60 in all. At the March meeting in 1883, the town
accepted by vote the following amendment to the auditors'
report :

" Resolved, by the legal voters of the town of Bakersfield,
in town meeting assembled, that the auditors* report just
read and submitted to the town be and is hereby amended by
allowing Junius Barnes and William B. Shattuck for services
as listers of said town, in 1882, fifteen days' work as services
each, and the sum of $1.50 per day each, in lieu of the sum
the auditors allowed them, making $22.50 for Mr. Barnes,
and also $20 for making the list and attending the equalizing
board at St. Albans, and $22.50 for Mr. Shattuck.

The town tendered the plaintiff $42.50. It did not appear
that the town ever promised to pay the plaintiff for his
services as lister ; or that it took any action m regard to his
compensation when he was elected ; or what the town had
paid its listers per day, except in 1881, when $2 per day was

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paid. The town records showed what amount had been paid
the listers for a long series of years — sometimes showing
what was paid the whole board, as in 1875, viz., $100, and
then what was paid each lister, as in 1876, viz., $13.30. It
appeared by these records that the plaintiff was paid for his
services as lister in 1879 $32»

G. W. Burleson for plaintiff.

Cross Gr Start for defendant.

Powers, J. — The right of town officers to recover pay for
official services is regulated by statute. Section lwteb'b oom-


2673 reads : *' Towns, at the annual meeting, may watdtobt.
fix the compensation of town officers." Section 2727 requires
the auditors to examine and adjust the accounts of town
officers, and report the items of such accounts to the town at
its annual meeting. Section 2728 forbids the allowance by
the auditors of any claim for personal services except when
'compensation is fixed bylaw or by vote of the town, but
requires the auditors to report the nature and extent of
such services to such meeting.

By these sections it is clear that the plaintiff is not entitled
to recover for his services beyond the sum tendered. When
he accepted office he was bound to know that the " nature
and extent of his services" would be reported to such meet-
ing by the auditors, and that at such meeting the town, being
informed by the auditors of the character of his services,
would ** fix the compensation."

He took office impliedly agreeing to accept pay as the law
contemplates. It is not a case where long usage has made
the law, but a case of explicit statutory regulation.

Judgment affirmed.

Harrrison, etc.,



(Advance Case, Kentucky. June i8» 1885.)

A statate fixing an assessor's compensation provided that ** the amount
allowed shall not exceed fifteen cents for each person's list of taxable
property, and the same shall be paid by the treasurer upon the warrant
of the auditor."

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HM, that the assessor was entitled to pay for each list taken by him,
whether it embraced property or not. Such construction of the statute,
having been followed by the executive department for years, will be
adopted by the courts.

Appeal from Louisville Chancery Court
71 L. Burnett, Isaac 71 Woodson, Hargis & Easton, and Goai-
loe & Roberts for appellants.
Helm & Bruce and P. W. Harden for appellee.

Holt, J. — The assessor of Jefferson county returned upon
his books for 1883 ^ report in accordance with the statutory
facw. form as to 76,205 persons, of whom only 21,232

owned any taxable property. *

The number returned by him in 1884 was 78,343, of whom
but 21,871 had any estate ; but the entire number returned
for both years were either tithables or property owners ; and
the question is now for the first time presented to this court .
whether an assessor is entitled under the statute to pay for
each and every list taken by him whether it embraces prop-
erty or not. Its decision involves the construction of the
statute, which provides that " the amount allowed shall not
exceed fifteen cents for each person's list of taxable property,
and the same shall be paid by the Treasurer upon the war-
rant of the auditor. (Gen. Stats, ch. 92, art 5, sec. 8.) The
form prescribed by it, and the blanks in accordance there-
with which are furnished to the assessor, contain forty-five
items as to which the person being listed must make answer
under oath to be administered by the assessor ; and he can
not return anyone as delinquent without first applying at his
residence for his list ; nor is he entitled to any compensation
until he makes oath that the person "rendering the list"
made oath to its truth. It is urged upon the part of the
State that a blank space, where the items of property are to
be enumerated in case the person being listed owns them, is
not a " list of taxable property ;" that these words in the
statute divest it of all doubtful import, and that they must be
disregarded in order to allow the assessor pay for taking the
list of one who has no estate. Upon the other hand it is as-
serted that when the officer has taken the sworn statement
of the person liable to pay tax in accordance with the statu-
tory form, that it is in legal contemplation his " list of taxable

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property," although in point of fact it embraces no property.
For instance, his name is first entered ; and even if he has no
property, yet the assessor must enter his statement upon oath
as to the number of his children, if any, between six and
twenty years of age, and the other items or information as
required by the form ; and it is insisted that when this has
been done it is his " list of taxable property" within the mean-
ing of the law.

A brief review of the former legislation upon the subject,
and the light in which it has been regarded by j,_,,„ ^,
those charged with its execution, will aid in ar- ^-^^m^^o"-
riving at a correct conclusion.

The form for the list prescribed by the act of January 13,
1814, enumerated twenty-two items ; and by the act of
February 2, 18 19, entitled " An act to alter the mode of
taking in lists of taxable property," and in the body of which
is found the expression, " list of taxable property," the com-
missioner of tax, as the assessor was then called, was allowed!
such compensation as the county court might see proper to
certify to the Auditor.

This was changed by the act of January 29, 1829, which
like the present law, provided " that it shall be the duty of
such commissioners to apply at the residence of every indi-
vidual in his county or district liable to taxation for his list of
taxable property," and allowed not exceeding five cents for
each list taken by " the commissioners of taxable property."

By the act of January 4, 1840, entitled " An act to change
the form of the commissioners' books of taxable property, and
to equal all the duties of th^ commissioners of tax, and other
officers in the relation to the same," a new form, containing
twenty-nine items, was provided ; and it by way of illustration
gives the names of supposed persons and their lists ; and the
last one named is " Peter Mosby," whose list is an entire blank
save the statement that he is a white male over twenty-one
years of age, and has six children between seven and seven-
teen years of age. By an act approved March 3, 1842, it was
provided that the county courts should make allowances to
** commissioners of taxable property " of not more than eight
cents for each list ; and by the revised statutes adopted in
1852 the same pay was allowed for '^ each list of taxable

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They also prescribed a new form of assessments of thirty-
five items, and interchangeably speak of it as a list of '* taxable
property " or " taxable estate ; " and sec. 14, art. 6, ch. 83, re-
quired the person giving the list to enumerate zls a part of it
the estate owned by him, and taxed in any other State. The
General Statutes adopted in 1873 provide still another form,
and which is the one now in force ; and which furnishes to
the State when returned by the assessor much valuable infer-
mation, aside from taxation. By it the number of voters;
the number of children between six and twenty years of age,
and many other facts necessary to the existence of the State
and the proper conduct of its affairs are ascertained ; and this
list is repeatedly spoken of in the statute now in force, as it
was in the previous ones, as the " list of taxable property."

The expression read in the light of all the previous legisku
TAZDia LBTDB. tiou Icads to the conclusion that the allowance to
™SiSi. *^"' the assessor does not depend upon the property
returned, but upon the taking of the list ; and that the entiy
of the name of Peter Mosby and his six children, as prescribed
in the act and from supra in which he is mentioned, and which
related to " taxable property," constituted his " list of taxable
property " within the meaning of law. Again, if this be not
so, and the pay is to d^end upon property being returned,
which will add to the State's revenue, then in case an asses-
sor, under the provision of the Revised Statutes providing
that a person should list his property situated in and taxed
by another State, had taken the list of one who had no other
property, yet he would not have been entitled to any pay for
it because it was not subject to taxation in this State, and no
benefit by way of taxes would Have been obtained save the
poll tax on the tithable. It would seem from this that it is
not the items embraced in the list, but the taking of it which
gives the right to compensation ; and that it is based upon
the lists, and not the items in them. Technically speaking it
requires more than one item to make a list ; and yet it will
hardly be claimed that an assessor is not entitled to pay for
taking one which contains no property save one tract of land
worth thousands of dollars ; and yet in a strict sense this
woujd not be " a list of taxable property."

In construing a statute the object to be accomplished
must be considered. In this instance it is to obtain the sworn

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statement of the person liable to taxation as to his property,
and the other information required by the law. He may not
own any taxable estate ; but he must state on oath whether
his statement is true. It cannot be said that if one has no
property that the oath should not be administered to him ; or
that if he refuses to take it, or disclose his condition as to
property, that he is not liable to a penalty.

When his sworn statement has been obtained, its truth or
feilsity may under the law be otherwise ascertained ; and it
should not be presumed that the Legislature in enacting the
law relied for a faithful performance on the part of the asses-
sor upon the character or amount of his compensation, which
at most is hardly supportable, instead of his oath of office and
the bond he is required to execute. If so, and his compensa-
tion is to depend entirely upon the property returned, then
with equal force it can be contended that he would neglect
his duty in obtaining the other information required by law
and which is highly important to the State, and yet does not
relate to property. But let us turn to the meaning of the ex-
pression, " list of taxable property," as used in the statute, and
suppose that one of the citizens of Louisville should contract
with its mayor to ascertain the taxable property of each
citizen living on Jefferson Street at the price of ten cents for
each list. Now would it be any answer to the claim for com-
pensation that the mayor was not bound to pay for the list
of those who, upon investigation, appeared to own no prop-
erty? Certainly not, because this would not accord with
the meaning of the contract or the intention of the parties.
Here the State has said to the assessor, If you ascertain each
man's taxable property in your county you shall have not ex-
ceeding fifteen cents for each person's list. But it is claimed
that when he applies for his compensation he must be told
that although he applied to A for his list, and he was subject
to taxation, yet as he rendered a return of nulla bona, and you
made the same return to the State, you have no claim for
taking the list

But although the question is res Integra in this court, yet it
is not required by its opinion to establish a practi- coKTOTORijm^
cal construction of the statute. The very fact wohadopwd.
that persons and even courts are differing as to its meaning
tends strongly to show that it is at least of doubtful import.

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It is alleged in the answer, and admitted by the demurrer to
it, that the State, through its county courts and its executive
department, has for many years allowed and paid for each
list whether it embraced property or not. The executive
branch of a government must necessarily give a construction
to the laws which it must execute ; and if its construction has
been followed for years, and in view of and without interfer-
ence by the law-making power, then such contemporaneous
arid long- continued construction should not be departed from
without the most cogent reasons. A long-continued practice
under a statute under such circumstances ripens into an
authoritative construction of it. The law, in its regard for the
public good, goes so far in some cases as to hold that communis
error facit jus ; but courts should be slow to set up a miscon-
ception of the law as the law ; and there is no need of it in
this instance ; but it is proper to regard a. long-continued
communis opinis in construing it.

The#object of construction is to give eflFect to the legislative
intent Its will and not hs words are the law. In the
language of the Supreme Court of the United States in the
case of the United States v. Moore, 95 U. S. 763, " a thing
may be within the letter of a statute and not within its mean-
ing; and it may be within the meaning though not within the
letter ; " and the meaning and not the letter must control.

A case within even the reason but not the letter of a reme-
dial statute is embraced by it. Admitting for argfument sake
that the letter of the statute under consideration does not
allow the assessor any pay for the list which does not embrace
property, yet the legislative meaning has been placed beyond
question by the action of the State. It was said by Chief
Justice Marshall in the case of Cohens^. Virginia, 6 Wheaton,
418, that "great weight has always been attached, and very
rightly attached, to contemporaneous exposition ; " and this
rule is so well settled that citation of authority is needless.
Not only those claiming rights under the law now in question,
as well as the county courts of the State, and those who have
had charge of its execution have for over half a century inter-
preted it otherwise, but while this was being done the various
legislatures and the people behind and over them have known
of it and recognize it by failing to interfere. They have in
fict not only ratified it by their silence, but by their action.

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Knowing* the practical construction which was being put upon
the provision of the statute as contained in the Revised
Statutes of 1852, the legislature re-enacted it in equivalent and
nearly the same language in the one now in force ; thus vir-
tually re-enacting that construction ; giving it the force of a
positive law and placing beyond question that it was the one
intended by the law-making power. Judicial precedent or
exposition could not give greater sanctity to it ; and as the
l^ngu^e of the statute and the legislation upon the same sub-
ject in force prior to its enactment render it at least of doubt-
ful import, we cannot doubt, in view of the long continued legis-
lation, executive and judicial action as to it, that the interpre-
tation placed upon it by the lower court is incorrect. It is
urged that if the pay of the assessor be insufficient, yet that
this is a matter for legislative consideration. This is con-
ceded ; but yet every statute should be construed according
to its equality ; and it must be assumed that the legislature
intended to give a fair compensation for the services to be
rendered ; and if the view now taken by the State of the
statute were to prevail, then the assessors would by no means
receive a compensation adequate to the labor required of
them ; and this is an argument against the soimdness of the
position, and leaves little room to doubt the wisdom of the
construction which has been followed for so many years, un-
disturbed by legislative or judicial action. It takes the as-
sessor of Jefferson County and his nine assistants, each fur-
nishing a horse, six months to assess the county ; and if only
allowed for the lists which embrace property they would
each receive but about three hundred dollars.

The pay of the assessors of other counties would be still
more inadequate, and especially so in the sparsely settled
ones. Moreover, the proportion between those who own tax-
able property and those who have none would vary greatly
in different counties, and there would be little uniformity in
the compensation for the labor.

In this instance the assessor, in accordance with the long
continued practice, has received his pay for each list whether
it embraced property or not ; and has disbursed the most of
it to his assistants ; and the legislative intention shown by a
long continued practical construction under the act ought
not to be defeated by a decision of this court, even admitting

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that it would accord with the letter of the law. The demur-
rer to the answer of the appellants reached back to the pe-
tition, and it should have been dismissed ; and the judgment is
reversed, with directions to do so.



Williams, Treasurer, eta

{Advance Case, Indiana, June i6, 1885.)

A statute making it the official duty of the county auditor " to diligently
search for and discover, in a lawful manner, omitted, concealed and unas-
sessed taxable property/' and to add such property when discovered to
the tax duplicate, with the proper valuation and charge tax thereupon to
the owner, and investing the auditor in discharge of this duty with the
powers of an assessor^ does not authorize a contract by which a county
board agreed to pay such auditor 30 per cent of the money and taxes re-
covered by the treasurer of the county by reason of such discoveries by
the auditor.

A statute allowed a county auditor a specified sum annually "and no
more for his services." Held, that a county board could not lawfully
allow him additional compensation for duties already his.

The invalidity of a contract allowing a county auditor thirty per cent
of all taxes paid by reason of his discovering property secreted from taxa-
tion will not invalidate a tax assessed upon property so discovered.

Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 26 of 73)