
    Case 24 — PETITION. EQUITY —
    June 18.
    Harrison, &c., v. Commonwealth.
    APPEAL PROM LOUISVILLE CHANCERY COURT.
    The practical construction given to a statute through a long-period, and acquiesced in by all departments of the government,, should control the court in construing it, even though that construction may contravene the letter of the law. 1.
    A statute should be construed according to its equity, the object:, to be accomplished being considered.
    
      3. Compensation of Assessors. — The statute which allows the assessor fifteen cents “for each person’s list of taxable property,” entitles him to that amount for each “list” returned by him, whether it embraces-property or not.
    GOODLOE & ROBERTS for appellants.
    1. An order of the county court allowing an assessor’s claim is a judgment, and can not be collaterally attacked, the jurisdiction of the county court as to that matter being unlimited. (Commonwealth v. Cain, 80 Ky., 318; Jacobs’ Adm’r v. L. & N. R. R. Co., 10 Bush, 369.)
    2. The act of April 24, 1880, in so far as it attempts to authorize a collateral attack upon orders of courts allowing claims, is unconstitutional. (Cooley’s Const. Limit., pp. 503. 504, and notes.) .¡)
    
      3. It was-the duty of the Commonwealth, through its authorized agents,, to see that no more was allowed or paid the assessor than he was1entitled to, and the surety of the assessor is, therefore, not liable for the excess paid. (Calloway v. Snapp, 80 Ky., 565.)
    4. After the Auditor has passed a claim all questions of error and illegality are “closed out and concluded,” and the claim can then be-attacked only for fraud.
    5. The act of calling on a person, swearing him and listing his namei entitles the assessor to the compensation fixed by the statute, although-the person “ listed ” has neither property nor family. This has been/ the practical construction placed upon the law for years, and it has-been acquiesced in by all departments of the government. (2 More-head & Brown, 1370, 1371, 1376, 1380; 3 Statutes of Ky. (Lough-borough), pages 514, 519; 2 Revised Statutes, pages 248-9, 252, 253;; General Statutes, chapter 92, section 8.)
    6. The long continued practical construction of the statute should prevail. (Smith on Constitutional Construction, section 624, page 741; Warfield’s Will, 22 Cal., 71; Barbour v. City of Louisville, 83 Kentucky, —; United States v. Moore, 95 U. S., 763; Bridgeford & Co. v. Newman, MS. Opinion, 1880; Pennington v. Woolfolk, 79 Kentucky, 19.)
    7. A statute should be construed according to its equity and its reason, and not according to its letter.
    
    ISAAC T. WOODSON on same side.
    The practical construction placed upon the statute for such a long period-, and acquiesced in by the law-making power, should control. (Surgett v. Lapice, 8 How. (U. S.), 71; United States v. Pugh, 99 U. S„ 265, 269; United States v. Lytle, 5 McLean, 17; Maloney v. Mahar, 1 Mich., 26; McKeen v. Delaney, 5 Craneh, 22; Union Insurance Co. v. Hoag, 21 How. (U. S.), 35; Williams v. Dayton, 55 N. Y., 378; Story on Constitution, 408; Sparrow v. Kingman, 1 N. Y., 260j Pratt v. Brown, 3 Wis., 609; Cooley’s Const. Lim., page 65; 1 Kent’s Commentaries, page 475; Yerger v. Allen, 1 Yerg-., 376; Pennington v. Woolfolk, 79 Ky., 25; Commonwealth v. Whipps, '80 Ky., 280.)
    'THOMAS E. HARGIS and T. L. BURNETT, of counsel for APPELLANTS, ARGUED ORALLY.,
    Briefs not in record.
    .P. W. HARDIN, Attorney-General, and HELM & BRUCE for APPELLEE, IN PETITION FOR REHEARING.
    Brief not in record.
    1. As to rules for the construction of statutes. (Boston v. Smith, Walker’s Ch’y (Mich.), 395; Bosley v. Mattingly, 14 B. Mon., 73; U. S. v. Warren, 4 McLean, 460; Allen v. Mutual Eire Ins. Co., 2 Maryland, 120; Rex v. Poor Law Commissioners, 1 Neville & Perry, 375; Bartlett & Waring v. Morris, 9 Porter (Ala.), 258; Paulina v. U. S., 7 Cranch, 52; Barker v. Estey, 9 Vt., 138; Pierce v. Atwood, 13 Mass., 343; Nichols v. Wells, Sneed, 259; Manser . v. Chester-, 22 Pick., 387; Holbrook v. Holbrook, 1" Pick., 250; Evans v. Jordan, 9 Cranch., 203; Jarot v. Jarot, 2 Scam., 11; Weathers v. Stewart, Cain’s Cases, 54; Way v. Cary, 1 N. Y. Term Rep., 191.)
    "2. As to the meaning of the word “property.” (Conn v. Jones, Hardin, 8; Neyfong v. Wells, Ibid., 562; Holbert v. Dealing, 4 Lit«stell, 9.)
    :3. No instance can be pointed out where the words “taxable property,” as used in the General Statutes, mean any thing except property from which taxes can be collected. Eifty-seven instances cited where, as counsel contend, from the context of the section in which the words are used, the idea is excluded that any thing is meant except property from which taxes can be realized.
    
      4. If the judgment is to stand reversed the court should remand the case, with directions .simply to overrule the demurrer to the answer, thus giving the plaintiff an opportunity to amend. (Bullitt’s Code, section 133; Baker & Rubel v. Whipps, MS. Op., 6 Ky. Law Rep., 307.)
   •JUDGE HOLT

delivered the opinion of the court.

Tlie assessor oí Jefferson county returned upon Ms books for 1883 a report, in accordance witli 'tlie ■statutory 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 property 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 warrant of the Auditor.” (Gen. Stat., chap. 92, art. 5, section 8.) The form prescribed by it, and the-blanks in accordance therewith 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 any one 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 asserted that when the officer has taken the sworn statement of the person liable to pay tax, in accordance with the statutory form, that it is, in legal contemplation, his “list of taxable 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 meaning of the law.

A brief review of the former legislation upon the ■subject, and the light in which it has been regarded by those charged with its execution, will aid in arriving 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, 1819, 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 commissioner 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 individual' 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 regulate the duties of the ■commissioners of tax, and other officers, in' 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 seventeen 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 estate.” They also prescribed a new form of assessment, of thirty-five items, and interchangeably speak of it as a list •of “taxable property” or- “taxable estate;” and ■section 14, article 6, chapter 83, required the per■son giving the list to enumerate, as 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 information, 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 legislation leads to thé conclusion that the allowance to the assessor does not depend upon the property returned, but upon the taking of the list; and that the entry of the name of Peter Mosby and his six children, as prescribed in the act and form supra, in which he is mentioned, and which relates to “taxable property,” constituted his “list of taxable property,” within the meaning of the-law. Again, if this be not so, and the pay is to-depend upon property being returned which will add to the State’s revenue, then, in case an assessor 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 would, 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 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 can not 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 falsity 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 upon the part of the assessor-upon the character or amount of his compensation, which, at most, is inadequate, instead of his oath of office and the bond he is required by law to-execute. If so, and his compensation 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 return to the meaning of the expression, “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 upon Jefferson street, at the price of ten cents for each.list. Now, would, it be any answer to the claim for compensation. ■that the mayor was not bound to pay for the list of those who, Upon investigation, appeared to own no property? 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 exceeding fifteen cents for each person’s list; but it is claimed that when he applies for his compensation he must be told that, although you 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 this question is res integra in this 'court, yet it is not required by its opinion to establish a practical construction of the statute. The very fact that persons, and even courts, are differing as to its meaning, tends strongly to show that it is, at least, of doubtful import. 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 interference by, the law-making power, then such contemporaneous and long continued construction .should not be departed from without the most co.g-ent reasons. A long continued jsractice 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 misconception 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 opinio in construing it. The •object of construction is to give effect to the legislative intent. Its will and not its 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 meaning; 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 remedial statute, is embraced by it. Admitting, for argument sake, that the letter of the statute under consideration does not allow the assessor •any pay .for a 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 v. 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 Jaw now in question, but the county courts of the .'State, and those who have had charge of its execution have, for over a half a century, interpreted it otherwise; and while this was being done the various' Legislatures, and the people behind and over them, have known of it and recognized it by failing to interfere. They have, in fact, not only ratified it by their silence, but by their action. 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 virtually 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 uot give greater sanctity to it; and as the language of the statute and the legislation upon the same subject, in force prior to its enactment, render it, at least, of doubtful import,, we can not doubt, in view of the long continued legislative, executive and judicial action as to it, that the interpretation 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 conceded, but yet every statute should be construed according to its-equity, 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 soundness of the position,. ■ and leaves little room to doubt the wisdom of the ■construction which has been followed for so many years, undisturbed by legislative or judicial action. It takes the assessor of Jefferson county and his nine assistants, each furnishing 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 taxable 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 that it would accord with the letter of the law. The demurrer to the answer of the appellants reached back to the petition, and it should have been dismissed; and the judgment is reversed, with directions to do so.  