7 Kan. 178 | Kan. | 1871
The opinion of the court was delivered by
A temporary injunction .was granted by the judge of the court below, to restrain the plaintiffs in error, as Treasurer and Sheriff of Saline county, from collecting certain taxes, assessed and levied against the defendant in error. The plaintiffs in error claim that
Section 2, .of ch. 124 of the laws of 1869, (p. 245,) provides, “ That the county clerks of the several counties in this State, in which any railroad now has or hereafter may have its track and roadway, or any part thereof, shall constitute a board of appraisers and assessors for the property of such railroad company.” Under this act, all railroad property is to be assessed by county clerks, and the act nowhere provides that the assessment may be made by deputy county clerks. Hence the defendant in error claims that said assessment was void.
Section 41 of the act relating to counties and county officers, however, (Gen. Stat., 263,) provides that “Every county clerk shall appoint a deputy in writing, under his hand, and shall file such appointment in his office; and sirch deputy, in case of the absence or disability of such clerk, or in case of a vacancy in his office, shall perform all the duties of such clerk during such absence, or until such vacancy shall be filled.” This language seems too plain to need any judicial construction. It authorizes deputy county clerks to perform all the duties of county clerks, and it makes no difference what those duties may be called, whether ministerial, discretionary, or judicial. A county clerk in this State is not merely a “ clerk,” as
Almost every officer of every kind must exercise some judgment and some discretion, but that alone does not make him a judicial officer. The exercise of judgment and discretion is not peculiarly and exclusively the province of the judiciary, but it is also in an eminent degree the province of the executive and legislative branches of the government. Every appraiser of, the property of a decedent’s estate; of real estate taken in execution, or attachment; of real estate in an action of partition; of school lands, or of strays, must exercise the same amount and kind of judgment and discretion that an assessor does when he assesses the same kind of property for taxation ; and yet no person ever thought of calling such an appraiser a judge or a court; and no ope ever supposed that such an appraiser was exercising the functions of a judicial tribunal. If such appraisers do exercise judicial functions, then of course they must be courts, or judges of courts, for under our constitution, all the judicial power of the State is vested in courts. (Art. 3, §1.) We have no doubt but that a deputy county clerk may perform any act that a county clerk can in the absence or disability of the county clerk; and therefore,’ we think the assessment of the said property of the said railroad company was legal and valid.
The order of the j udge of the court below, granting the temporary injunction, must be reversed.