The Bourbon news., 1913-09-26
HOWARD RECOGNIZED IN
TAX SUIT PROSECUTION

uc SulI VI Juc commonwealth vs.. |
the Burley Tobaoso Society, insti-
tuted in the County Court to recover
back taxes upon unlisted property of
the plaintiff from the formation of the
pool in 1909, which was called Thurs
day and passed until Friday morning,
was continued until October 8.
Upon the grounds that John r.
Collins and S. K. Nichols, witnesses
in the case, were absent the plaintiff
entered motion to have the case
continued, which was granted by
Judge Dundon.
The suit is to recover taxes on ap-
proximately $350,0OO worth of prop
erty and was instituted several
months ago by Mr.. Howard.
The morning session of the court
was occupied with argument of the
question of the right of John Howard,
ex-revunue agent, to participate in
the prosecution of the case. Judge E
G. O'Rear and Messrs. H. T. Duncan
and Dwight Pendleton presented the
position of the defendant, and Judge
Lewis Apperson and Mr. Howard him
self supported the contention that his
right to participate had not been ab-
rogated through his resignation from
the Offlce OF revenue agent. County
Attorney George BattertOn also ap-
peared as associate counsel for the
plaintiff
The question was brought up when
the attorneys for the defense filed a
supplemental answer reciting that
since the filing of the statement and
the assignment of the case for trial,
John Howard, who brought action in
the name of the Commonwealth, had
resigned as revenue agent for the
State at large, and asking that the
court require that another revenue
agent or the sheriff, either Of whom
would be qualified to prosecuate the
case, be substituted. To this the
plaintiff demurred.
In the argument Judge Apperson
and Mr. Howard took the ground that
the law required only that the agent
institute the action; that it was he
duty Of the couny attorney to pros
ecute the case; that the actual plain
tiff was the State, and that resigna-
ton or deah of tn revenue agent
did not necessitate a change of plead
ings or substitution. Mr. Howard
said that it was true he had resigned
State, but that the statutes provided
that he should participate in the ac-
tions. he had brought before resign
ing and secured his right to the fees
in the event the case should be
decided for the Commonwealth. He
further held that his bond continued
binding until the case should be dis
posed Of.
Basing their argument upon the
cases and sections cited by the plain
tiff, the counsel for the defendant ar
gued that although the actual plain
tiff, the Commonwealth could not
speak except through some author
lied representative; that no one save
a revenue agent or sheriff could insti-
tute an action for back taxes and
either the one or the other must di-
rect such suits; that the duty and
authority Of county attorney ended
with presenting the cause and that he
could not settle such a suit. and while
the action did not abate with the res
ignation of the agent filing it, yet it
must be prosecuted by an authorized
party whose bond afforded protection
for the defendant. N
1t was held that the bond of Mr..
Howard could cover only acts prior
to the time of his resignation and
could not anticipate further obliga-
tions such as the defendants court
costs subsequent to his retirement as
a public official. Another point made
was that the defendant was entitled
to have as opponent one bound by
the oath of public official bearing
the responsibilities and obligations of
a public official, whereas Mr.. Howard
was now only private citizen, with
out the right to settle the case should
settlement be desirable; furthermore
that the county attorney could not ap-
pear for an eX-offic1al. Mr.. HOward'S
sole interest in the case now, it was
argued, was hope of securing the fees
amounting in this Uase to $3,500
AS to the matter of compensation,
it was argued that the fees provided
were for services involved in causing
omitted property to be assessed and
not for the formal act of filing state
mentS, and that the agent who might
perform the work or prosecuting the
action would be entitled to the COM
pensation should property be assessed
Mr.. PendletOn declared that Mr.. How
ard had filed fOrty-five suits against
the Burley Society in which he antici-
pated receiving fees amounting to
near two hundred thousand dollars.
but that the service contemplated by
the law was yet to be performed. The
bond provided for the faithful per-
formance of duty as a public official.
and duties terminated immediately
when he ceased to be public official.
Judge Dundon sustained the de-
murrer to the supplemental answer,
saying that the case should be heard
on its merits with the State as plain
tiff in the action, irrespective of the
resignation of Mr.. Howard