101 S.W.2d 913 | Ky. Ct. App. | 1937
Affirming.
L.E. Bernard, former county judge of Russell county, brought this action against J.R. McFarland, treasurer of Russell county, to recover the sum of $671.69, the amount due him on salary claims for the year 1933. From a judgment sustaining a demurrer to, and dismissing, the petition as amended, Bernard appeals.
The facts relied on for recovery are in brief as follows: In the year 1929 appellant was elected county judge of Russell county for a term of four years. He qualified on the first Monday in January, 1930, and served until the first Monday in January, 1934. His salary as county judge was fixed at $91.67 a month. J.R. McFarland is the treasurer of Russell County. During the months of April, May, June, July, September, October, 1933, and January, 1934, there were issued to appellant salary claims aggregating $671.69. Each claim was presented to the county treasurer, who indorsed same "No funds on hand with which to pay this. It bears six per cent interest from date." From *211 the county levy for the year 1933 there was available about $8,000. Of this amount the sheriff paid to the treasurer the sum of $6,516.23 between the first of the year and August 1, 1934. The claims allowed appellant for salary were part of the fixed and governmental charges for the year 1933, and the taxes collected for that year were more than sufficient to have paid such charges had the taxes or revenue been so applied. Instead of applying the funds to the fixed and governmental purpose for the year 1933, the treasurer paid out $2,782.50 on claims payable out of the general fund for years other than the year 1933, and the sum of $1,469.07 in payment of officers' salaries for the year 1934. By reason of the misapplication of the funds coming into his hands there was left no part of the revenue out of which to pay appellant's claim. The treasurer kept, or it was his duty to keep a record or register showing the date each of the claims was allowed, the number thereof and the date when presented for payment, and should have called in for payment the warrants or claims allowed by the fiscal court in the order in which they were allowed and presented, first allowing claims in payment of the governmental fixed charges of the county. All this the treasurer refused to do, and by reason thereof appellant has been prevented from collecting his claims.
In support of the cause of action the argument is as follows: Revenue collected for a particular purpose can be expended for no other purpose. Section 180, Constitution; Section 4281u-2, Kentucky Statutes. Where a debt is created in one year, and the tax levied to pay it is not collected during the year, the tax when collected must be applied to the payment of the debt. Salaries of officers provided by the Constitution are preferred claims, and entitled to prior payment over permissible expenses. The county treasurer shall keep a ledger in which he shall enter the date each claim is presented for payment, the amount allowed and to whom payable. If the treasurer has no funds in his hands with which to pay a claim at the time it is presented, it is his duty when he has received funds sufficient to pay the same to call in the claim for payment in the order in which they were presented. Breathitt County v. Cockrell, Jailer,
Judgment affirmed.
