Wulftange v. McCollom

JUDGE LEWIS delivered the opinion op the court. This is a proceeding by appellant in the Kenton — 362 — Circuit Court for a writ of mandamus, commanding appellee, Clerk of the Kenton County Court, to record a deed by which was conveyed to him the .absolute title to a lot of land in the city of Covington. In his petition, appellant states substantially, as the cause and ground of the application, that May '21, 1884, Holoway and wife executed the deed men.tioned, and in due form of law acknowledged it before appellee as Clerk of the Kenton County Court, as shown by his official certificate indorsed thereon. And that on the same day he produced and lodged the deed thus executed and acknowledged by the grantors in the clerk’s office for record, paid to appellee the tax for recording required in such cases, .and the following indorsement was thereupon made on it: “Left for record May 21, 1884. J. J. McCollom, Clerk.” But that afterwards appellee refused to record or to permit the deed to remain in the •.office for record, and returned it to appellant with the following indorsement on it-: “Record refused •on account of deed not being indorsed by city auditor, May 23, 1884. Attest: J. J. McCollom, Clerk.” It is further stated in the petition that appellee ■ refused to record the deed upon the sole ground that appellant had not complied with the provisions .••of an act, entitled “An act to amend the charter of the city of Covington,” approved April 28, 1884. Taking the statements of the petition as true, it is clear that appellee in refusing to record the deed ■omitted to perform a ministerial act enjoined by ■chapter 24, Gfeneral Statutes, and, therefore, appel — 363 — lant was entitled to the writ of mandamus applied for by him, and the lower court erred in sustaining the demurrer to his petition, if the provisions of the General Statutes regulating conveyances of real ■estate are to govern exclusively in this case, and that depends upon the validity of the act, the title ■of which we have quoted; sections 3 and 4 thereof being as follows: “§ 3. The auditor of the city of Covington shall, ■on application and presentation to him of title, with the proof which may be necessary and proper in each case, or the proper order of a court, transfer upon the transfer book kept by him in his ■office, any land or town lot, or part thereof, within the city of Covington charged with taxes upon the tax duplicate of said city from the name in which it stands into the name of the owner, when rendered necessary by any conveyance, partition, devise -or otherwise; and if by reason of the conveyance ■or otherwise, a part only of any tract' or lot as charged on the tax list is to be transferred, the party or parties desiring the transfer shall make .satisfactory proof of the value of such part as compared with the valuation of the whole, as charged on the tax duplicate, before the transfer is made; but in no case shall any transfer be made by said auditor .upon said transfer book' of any deed of absolute conveyance of lands or lots in said city, until the city taxes since 1879 due and payable upon the land, lot, or part of lót whose transfer is -desired have been paid in' full, and proof of that Tact has been made to the auditor by the produc — 364 — tion of tax receipts, or the certificate of the city collector, or the city treasurer, or other legal evidence. The certificate of the auditor trpon the deed or other evidence of title presented to him that the-proper transfer of the real estate therein described has been made in his office, shall authorize the-county clerk of the county of Kenton to admit, such deed to record.” “ § 4. No deed of absolute conveyance of land or lots in said city of Covington shall be admitted to record by the county clerk of Kenton county until the same has been presented to the auditor of the. city of Covington, and by him indorsed “transferred,” or “transfer not necessary.” If the clerk, of said county court shall admit to record any deed of absolute conveyance not so indorsed, he shall forfeit and pay to the city of Covington the sum of ten dollars in each case, to be recovered by said city by suit in the mayor’s court thereof.” Counsel fcr appellant contends that the act in question is invalid, because passed in violation of section 37, article 2 of the Constitution, which is as follows: “No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title.” As held by this court in Philips v. Covington and Cincinnati Bridge Co., 2 Met., 219, such a construction should be given to the clause “as is necessary to render it effectual in accomplishing the object for which it was designed; but it should not be so construed as to restrict legislation to such an extent as. to render different acts necessary where the whole365 ¡subject-matter is connected, and may be properly embraced in the same 'act.” The object of that clause was to prevent the enactment of any law under a deceptive title, or that embraces subjects having no obvious relation to each • other, and which, in their nature, are diverse and unconnected; but, as heretofore held by this court, • only so much of such an act is invalid as is not in•dicated by the title, such parts as do conform thereto ' being regarded as operative. The question then arises whether the act we are now considering embraces more than one subject in the meaning of the Constitution? And if it does, whether the subject of the two sections quoted is -expressed in or indicated by the title? The whole .of the act, except those two sections, .-appears to relate to subjects connected with the municipal government' of the city of Covington, and -.such as are usually, and may legitimately be, embraced in a city charter or acts amendatory of it; but sections 3 and 4 relate to the conveyance of real estate situated in the city of Covington, a subject which, ■ from the organization of the State government, has been regulated by general laws, intended to be uniform in their operation, and which it is • of vital importance should be stable and certain. It never has been the policy of this State, nor should it be of any government, to impose restraints upon alienation of real estate by deed made in good faith. On the contrary, one of the principal objects • of the creation of the office of county court clerk by the Constitution was to facilitate such transfers, and — 366 — to perpetuate evidence of title to real property; and by general laws existing from the beginning, and modified from time to time, only to more effectually carry out the object, such clerk, in every county, is. required, under penalties, to record all deeds conveying real estate presented to him for the purpose, as the deed in question was presented by appellant. But sections 3 and 4 of the act not only prescribe conditions upon which deeds may be recorded in the office of the clerk of the Kenton County Court, extraordinary in their nature, and in many cases impossible to be complied with, but impose a penalty upon a constitutional officer for doing what it is made his. duty to do by the general laws regulating conveyances.. Whether, if the provisions contained in the two-sections referred to were embodied in a separate act, and expressed in the title thereof, they would be valid, need not be decided; but it seems clear to us; that the subject of recording deeds to real estate in the clerk’s office of the Kenton County Court has no-relation to or connection with the municipal government of the city of Covington, and that the title of the act before us is not such as would fairly apprise-the people, or the members who vote on it, that it contained provisions requiring the approval of the city auditor of Covington as a condition of. recording such deeds, and imposing penalties upon the clerk who does so without such approval. The issuing of marriage licenses, or recording last wills and testaments by the same officer,, would have been.as fit subjects of the act, and as readily suggested by its. title as the recording of deeds- — 367 — The judgment is reversed, and cause remanded, with directions to the lower court to overrule the-demurrer to the petition, and for further proceedings, consistent with this opinion.