91 Ky. 472 | Ky. Ct. App. | 1891
delivered the opinion of the court.
These two cases involve the liability of two former sheriffs of Christian county, John Boyd and C. M. Brown, and their sureties, for taxes collected of delinquents, whose property had not been assessed or listed by the assessor, or in any other manner as required by law. The cases are similar, and have been considered as one.
The sheriffs, or their deputies, ascertaining that much property in the county had been omitted to
The proceeding was had in the case under section 3, of chapter 93, General Statutes, providing: “That in all cases in which any sheriff or collector has collected revenue on property not listed by the assessor, and charged to him, and has failed to account for the. same, or has collected taxes from delinquents, and failed to account for the same, or in any other way failed to do his duty in regard to the revenue, it shall be the duty of the Auditor’s Agent to report the same to the county court of the county, which court shall issue a rule or summons against such sheriff or collector, and his sureties, requiring them to appear in ten days after service to show cause why judgment should not be rendered against them for the amount claimed to be due; and, upon hearing, if the court is satisfied that such sum, or any part thereof, or any other sums, have been collected and not accounted for, it shall render judgment therefor, with fifty per cent, damages and the costs of the proceedings, and execution shall issue thereon * * returnable in sixty days * *: Provided, That said sheriff, or collector, may pay same at once to the agent of the Auditor and save costs.”
The notice filed by the agent of the Auditor before
It is claimed that a separate summons should liave been issued in each instance, and the bond upon which the surety was sought to be made liable or its covenants set forth. The sureties and the sheriffs, or their deputies, were all brought before the court by the summons, and being in court, and knowing the nature of the charges made by both the summons and the report of the agent of the State upon which the summons was based, it seems to us no greater accuracy should have been required. The amount of the revenue collected, or how much, and to what extent, on this property that had never been listed, the county judge did not know, and could not ascertain without recourse to the books of the sheriff in which he had made the entries, or by summoning every tax-payer in the county. When brought before the court, the amount was not only ascertained, but agreed on by the parties. This summons, or the notice upon which it issued, was not required to set forth the nature of the claim with such averments as
It is insisted that this remedy, provided by section 3 of the Auditor’s Agent act, was repealed by the act of May 17, 1886, title “Revenue and Taxation,” under which the Auditor, where the sheriff, or any other collecting’ officer, fails to account for the revenue, may proceed against him by motion in the Franklin Circuit Court, or any other having jurisdiction, to obtain judgment. The fifth section of that act provides that “all other acts, general and special, and parts of acts, inconsistent herewith, or not in con-
Besides, the very act under which the repeal is claimed provides that the Auditor may proceed in
The constitutionality of the act is settled in the case of Hoke v. Commonwealth, 79 Ky., 567, and although this particular section was not in question, the act, including this section, is clearly constitutional.
It is claimed by the appellants that the statute of limitation of one year applies to this case, and that although not pleaded, an action for the recovery of a penalty when limited must be brought within the period prescribed, or the action will be dismissed. This is true for purely penal actions, but not as to civil actions, where damages in the nature of a penalty are annexed.
Here the statute of five years applies as to the damages, there being no limitation fixed by the statute creating the liability. (Article 3, chapter 71, General Statutes.) The title under which the one year limitation is found, that of Grimes and Punishments, would of itself indicate that its provisions did not apply, and was not intended to apply, to this class of cases.
In the case of Boyd there is some evidence of an agreement to pay what was due, so as to save costs, and an alleged violation of that agreement by counsel for the State. We do not understand that any such agreement was made as could be enforced, nor were the appellants willing to account for what
In such cases, where the sheriff discharges his duty as the law requires, and reports to the county clerk the lists of property that have been omitted, he is entitled to twenty-five cents for each list and twenty-five per centum of the taxes collected thereon. This large per cent, for collecting is an incentive to the discharge of these duties,, and a failure to do more than collect, connected with the failure to pay over, makes the sheriff and his sureties liable for the sum collected and fifty per cent, on the amount as damages.
The proceedings are summary, but the penalty not more than adequate for the wrong committed, still, in enforcing this penalty, we perceive no reason why the sheriff should not be allowed his twenty-five per cent, for collecting the money. He should be allowed nothing for the lists of property, as he reported none to the county clerk; but when the Commonwealth makes of the sheriff and his sureties the amount of money collected, and fifty per cent, damages thereon, it is but just and equitable that the commission of twenty-five per cent, should be deducted. The judgment should bear interest for the principal debt, but not for the damages.
The judgment below is reversed, «with directions to credit the appellants with the twenty-five per cent, commission, and for a judgment in conformity with this opinion.