Hopkinsville Kentuckian. [volume] (Hopkinsville, Ky.) 1889-1918, 1899-03-28
Judgment For $4,000, But $780,,
600 Barred by Limitation.
Republicans Trying to Make Po-
litical Capital Out of a Decision
i'm a Noted Case. .

court concurred, decided the famous
case OF the commonwealth against
former Auditor Norman and Audi
tors Agent Max Barker, of Louis
vile, holding that there was no con-
spiracy between the two men to de-
fraud the state of any money, thus
generating Norman, but holding
that Barker must pay back into the
treasury nearly $4,000 that he col
lected illegally as commissions.
More money would have been re-
covered but for the statute of limi-
tation upon it.
The decision is an affirmance of
the lower court as to Norman, but
reversal as to Barker, it having
held both excusable.
Judge Whites Opinion.
In passing. on the case Judge
White said
"We are of the opinion that I'M
der the law providing for the ap-
pointment of Auditors agents the
appellee, Barker, was not entitled
to the commission of 20 per cent. on
license taxes received and collected
by the County Clerk and paid by
that officer into the State Treasury
and that all sums paid to him on
that account were illegally paid.
The fact that the Attorney General
advised the auditor to pay those
sums as legal charges, and that
they were so illegally paid for a
number of years, cannot be pleaded
! by appellee Barker as a defense TO
their recovery. The Attorney Gen
eral was the adviser of the Audi
tor in the matter and not of Bar
ker. AS to the defense of contem-
poraneous and practical construc-
ton and good faith, and the opIn-
ion of the Attorney General, as pre-
scented by appellee Norman, we deem
it unnecessary to determine, as &C
cording to our view of the case that
is not before us.
In our opinion the gist of the &C
ton is the retention and refusal to
pay back money illegally drawn
from the Treasury. The charge of
conspiracy, if it had been main
tanned by the proof, would but hold
Norman jointly liable with Barker
for the repayment of the money and
this, too, regardless of any defense
by Norman other than it was leg
ally due to Barker. If the charge
of conspiracy fails there is no Joint
liability.
The proof shows that a great
part of the sums paid appellee Bar
ker were for commissions on IL
censes that were paid to the county
clerk for a year, and dated back
sometimes as much as ninety days,
so as to cover the entire time the
person had been engaged in bust
ness. In all these cases it appears
that the appellee Barker was paid
his commission for the whole license
fee for full year collected. This
was done though the delinquency
was less than thirty days, The law
provides that all license taxes and
fees be paid for in advance, and the
appellee Barker in defiance of that
| law and the further law that a pen
atty was attached for engaging in
any of the prohibited businesses
without license, advised and pro-
cured the County Clerk to issue IL
censes and past date them, instead
of proceeding by prosecution for the
penalty. The effect of the past
dating the licenses. as construed,
or at least acted upon by appellee
Barker, was that he received POI
per cent. of the whole year S license
fees. If the person was delinquent |
for less than seventy days, the
State, by past dating and paying
the commission to Barker, actually ]
lost money, and as an economic
measure it would have been better
to have pardoned past offenses and
dated the licenses from the day of