The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1884-02-07
Minority Report in the Case of Au-
ditor Allen.

LII response TO the 1OllOWlnS IeSOllLlOn Vi The
Senate, December, 1888. towit:
Resolved, That the report of the auditor of
public accounts be printed and be referred to
the committee for courts of justice, which COM
mittee shall enquire specially whether the au-
dtor was authorized by law to allow the treas
urer of Augusta county twenty per cent.
ther whether or not such commission was an
unreasonable and excessive allowance to said
treasurer for his services, and the committee is
directed to enquire what steps are necessary
and proper to be taken to protect the Common
wealth in the said collection of its revenues"
The undersigned members of the said COM
mittee cannot concur in the conclusions adopt
ed by the majority of this committee, because
satisfied that the auditor was we'll and
sufficiently warranted by law, in the matter of
the appointment of the treasurer of Augusta
county. to-wit: John E. Hamilton collector of
the arrears of taxes due the commonwealth
from the Chesapeake and Ohio Railroad COM
panies, the Shenandoah Valley and the Balti-
more and Ohio railroad companies; and was
also we'll warranted by law in the allowance to
said collector of twenty per centum as his COM
missions on the amount collected by him, and
paid into the public treasury.
We find by section 20, pages SO and 81, of the
Virginia revised laws of 1882, that when rail-
road company fails to. make report of it's gross
and net receipts within the time prescribed by
law, that it is made the duty of the auditor to
anpoint q person to assess the real estate and
rolling stock of such derelict railroad company,
and that it is made the further duty ofthe auditor
to select treasurer OF some county OF the com
monWealth, to whom he shall deliver the as
sessment to be made upon such property, and
that such treasurer has the power to disdain
and Sell The property Vi SuCll panty 1Of Tie
purpose OF collecting such taxes, according to
said assessment.
The railroads that especially refused and fail
ed to comply with the. law just recited, were
the Chesapeake and Ohio railway company, the
Shenan doah Valley railway company, and the
baltimore and Ohio railway company, all of
which ran through the county of Augusta,
wherein some of said roads had their machine
shops and large depots, and where was fire.
ties of rolling stock and other property of said
companies. t A., 4 :.
county John Z. Hamilton, was the the brother
in-laW Of the auditor of public accounts, but he
was above all others, the treasurer In the state
Of Virginia who had the opportunities afford
ed q collector to levy and collect the taxes due
from the railroads named, to the state. He oc-
cupied a central position at Staunton, and
Waynesboro Augusta county, where the three
railroads with their property, could be found.
1t may be true, the treasurer OF Roanoke coun-
andooh Valley taxes, and so it may be said as to
the treasurers of other counties, that they may
ed their counties, but the Augusta county treas
err had the advantage of all of them in this
that he could levy in his own county, for the
taxes of all of the three named railroads.
We find that ]. E. Hamilton was gentleman
of high social, moral and financial character;
that he had executed o bond to the common
wealth. as such county treasurer, in the penalty
of 0OO with sureties approved by the county
court of Augusta county, and we are clearly
in contemplation of law q full indemnity and
protection to the commonwealth as such col
lector of taxes in arrears our reason LOT ibis
pages ia and 81. authorizes the auditor to impose
upon county treasurers the duty of collecting
the taxes of the character named. therefore
the authority of the auditor to appoint the
treasurer named, was clear ana lndlsputabie,
and as to his fitness ana opportunities LOT Inc
discharge of that duty, there can be no possible
doubt.
As to the allowance of the 20 per cent. to the
collector we are sasen v,s ee Of tbe was
mum compensation, and we DO not belleve that
in the history of that ONCE any collecIlon was
ever undertaken involving more OF trouble, care
and personal responsibility than did this, when
it is considered that said collector was con-
stantly subiecting himself TO Inc danger OF
damage suits against him as trespasser I'M
der novel and experimental acts of the General
Assembly of Virginia, which had never receiv-
ed judicial construction from any of the courts.
1t appeared in evidence before the committee,
that Mr.. Hamilton, collector as aforesaid, had
been sued, individually, in action OF law, IN the
United States circuit court, at Harrlsonpurg,
Va. by the Baltimore and Ohio road, and Dy
chancery proceedings in the United states cir
cult court at Richmond, Va, and that the coun-
sci for the railroads had in open court, threat
ened him with individual damage suits as 2
trespasser for levying upon their properly, anu
one of the judges who decided the case, actually
declared that Coupon-Killer No. was uncon-
stitutional and void, and that such collector
was individually responsible for damages; anu
The announcement of the personal l1aDll1ty un-
der Coupon-Killer No. 2 was VIGOROUSLY made
before the appointment of said collector, by the
lawyers for the railroads and bOndholdefs pros
ecuting similar cases.
We find that this collector was occupied sew
eral weeks of his time in the care and attentl0n
to the collection of the taxes Named was SUP,
jected to very great personal harrassmenI anu i
annoyance, as well as liability, when, IN tne
opinion of the said lawyers, has not yet ceased,
and that the said collector, in the way OF rail-
road expenses and otherwise, incurred con-
siderable outlay of his individual funds. But
our judgment of whether the compensation was
great or small, is in our opinion, no legitimate
factor, because the'act allowing the commission l
invested the auditor with discretion, and the
nrinciDla of ia universal. that the acC OF q
public officer, in the exercise of discretion, is
not the subject of review by any other body
or officer. unless it has first been established
that the discretion has been corruptly cXercls-
ed.
In this case there is not one particle of
proof to establish such corrupt exercise OF the
discretion ON the part of the auditor or any fact
or suggestion in the record pointing even in
that direction.
Nor do we consider that the question as to
whether Mr.. Allen required, or should have re-
quired bond, was submitted to us, or is it per-
tinent because Mr.. Hamilton collected and paid
in the money long since, and nobody has ever
anything to the contrary. For these
reasons, we are of the opinion that the auditor
acted in the foregoing matter with the utmost
good faith, and that he was not only authorized
by law but that it was his official duty, to per-
form the act complained of in the resolution.
All of which is respectfully submitted.
f. W. HUBBARD,
D. f. BAILEY,
CHAS. Il. CRUMPI,ER.