73 Ky. 132 | Ky. Ct. App. | 1873
delivered the opinion of the court.
By virtue of an act of the General Assembly, approved March 21, 1871 (Session Acts, 1871, p. 356), the County Court of Montgomery County, at its June term, 1872, appointed John A. Thompson collector of the tax levied in that county to pay the interest accruing on the bonds issued in payment of a subscription for stock in the Lexington & Big Sandy Railroad Company, and to pay the diiferent installments as they became due of a subscription for stock in the Elizabeth-town, Lexington & Big Sandy Railroad Company.
It is the duty of this collector to receive and receipt for all such taxes as may be paid between the 15th of July and the 25th of November in each year, and then within ten days after the last-named day to deliver to the sheriff of the county a list of all unpaid taxes. It is the duty of the sheriff to collect these taxes, with ten per cent damages, and pay them over within seventy days after they are listed to him • and he is made subject by the act to the “same penalties and amercements for a neglect of duty as sheriffs are subject to for a failure to collect and pay over the state revenue;” the remedy to “be by motion in the county court, in the name of the collector and receiver, against the sheriff and his sureties in his official bond, or by suit in the Montgomery Circuit Court.”
On the 4th of December, 1872, the collector listed with Ragan, the sheriff, uncollected railroad taxes amounting in the aggregate to $33,249.94. Ragan failed within the seventy
The essential and controlling question in this case is whether the proceeding in the county court was based on the proper bonds. The bonds upon which judgment was rendered stipulate that the sheriff shall by himself and deputies well and truly discharge the duties of his office, and pay over to such persons and at such times as they may respectively be entitled thereto all moneys that may come to his hands as sheriff. It may be that the terms of this bond are comprehensive enough to render the sureties thereon liable for all moneys, public or private, that may come to the hands of the sheriff when acting in his official capacity; but that such was not the intention of the law is evident from the fact that such officer is required to give a separate bond to secure the collection and payment into the state treasury of the public revenues, and still another to secure the collection and payment' to the persons entitled to receive the same the county levy and public dues of his county.
■ We entertain no doubt of the right of the sureties on the bond executed at the- time the sheriff is inducted into office to claim exemption from liability on account of any default of his touching his duties as collector of the public revenues or of the county levy or public dues of his county. As matter of law the sheriff has no right to collect these revenues and levies until he has executed the bonds required, and upon failure to give either bond he may be removed from office..
The county court so understood the law, as is evidenced by the fact -that taxes were levied at the levy court held June 18, 1872: “ for the old Lexington & Big Sandy Railroad, forty cents ad valorem tax on each one hundred dollars worth of taxable property;” and “for the Elizabethtown, Lexington & Big Sandy Railroad, $2.25 on each one hundred dollars worth of taxable property.” These taxes, being public dues of the county, must be accounted for by those persons who covenanted that Ragan should “collect, account for, and pay over to the person entitled to receive the same according to law the county levy and public dues of the county of Montgomery for the year 1872.” A covenant to this effect is contained in the bond executed pursuant to the provisions of section 3, article 2, chapter 26, Revised Statutes, and to this bond, and not to those upon which the collector proceeded in this case, the county must look for indemnity. The only thing that gives even plausibility to the position assumed by appellee is that the act of March 21, 1871, provides that the remedy against the sheriff for failure to collect and pay over the taxes listed to him by the collector shall be by motion or suit on “ his official bond.”
It is claimed that the bond executed by the sheriff at the. time
For the reasons given the judgment is reversed, and the cause remanded with instructions to dismiss the motion as to all the sureties of Ragan who join in this appeal.