277 S.W. 485 | Ky. Ct. App. | 1925
Reversing.
As a citizen and taxpayer of Kenton county, the appellant and plaintiff below, Joseph Carl, brought this equity action in the Kenton circuit court to enjoin appellee and defendant below, who is the sheriff of the county, from proceeding to distrain personal property or to levy upon and sell real property in the enforcement of the collection of the state and county taxes during the month of December, 1925, and from declaring taxes uncollected by December 1 delinquent and from collecting either interest or penalties on such taxes at any time during that month, all upon the ground that defendant as sheriff of the county and whose duty it is to collect such taxes, was threatening to and would proceed in the manner indicated unless enjoined by the court, and that such threatened action on his part would be contrary to chapter 108, page 312, of the Session's Acts of 1924 wherein it is provided that state and county taxes due and collectible in the year 1925 should not become delinquent until after December 31 of that year, instead of December 1 under the law as it existed at the time of the enactment of that chapter.
A demurrer filed by defendant to the petition was not acted on, and he filed his answer in which he alleged that the 1924 act was unconstitutional and void, especially as to him during his incumbency in office, because according to his past experience he would be deprived of enforcing the collection of about $8,000.00 of delinquent taxes before his term of office expired and upon which he would receive fees and commissions amounting to about $500.00, and that the effect of the 1924 act would be to reduce his compensation after he had been elected to and installed in office contrary to the provisions *330 of sections 161 and 235 of our Constitution. It was, furthermore, alleged and insisted on, that under the provisions of section 4239a of Carroll's 1922 Kentucky Statutes, the sheriff and his surety become responsible for the total of all tax bills, books and stubs for which he is required to receipt the county court clerk by the terms of that section, and that if the 1924 act is to be enforced during his term so as to deprive him from proceeding to declare any of the unpaid taxes delinquent, from and after which only he may proceed to enforce their collection with interest and penalties, then it would have the effect to impose a liability on him and his sureties without an opportunity for him to relieve himself against it. A demurrer filed to the answer was overruled and plaintiff declining to plead further, his petition was dismissed, to reverse which he prosecutes this appeal.
Before addressing ourselves to the question as to whether the 1924 act contravenes the provisions of either of the two sections of the Constitution referred to, as applicable to defendant, we deem it proper to say that his pleading was not sufficient to entitle him to rely on that objection to the validity of the act, since he nowhere alleged that the aggregate of all salary, fees and commissions of his office for the year 1925 up to the time of filing his answer, or to December 1, aggregated less than his constitutional salary of $5,000.00 and reasonable compensation for his necessary deputies, so as to show that the additional $500.00 of which he claims to be deprived through the operation of the 1924 act would be necessary in order to enable him to collect from the emoluments of his office the maximum constitutional sum of $5,000.00 for himself and reasonable compensation for his deputies. It requires no argument to show that defendant would not be affected by the provisions of the act he attacks, unless he was entitled to retain the extra $500.00 of which he claims to be deprived because of its provisions. Shipp v. Bradley,
Independently, however, of that proposition we think there is no merit in the point advanced and now under consideration. Learned counsel for appellee relies on the cases of Bright v. Stone, 20. Ky. L. R. 817; Thomas v. Hager,
In the case of Purnell v. Mann,
In the case of Butler v. Stephens,
In the case of Duff v. Moseley,
It will thus be seen that an incumbent in office may not complain of legislative action which may have a tendency to deprive him of fees to which he was entitled when inducted into office, unless the particular statute complained of reduced the rate of percentage of his compensation for the particular service, or the scale of fees for that service, and that his constitutional rights are not invaded by a reduction of the amount of service, or the total amount upon which his statutory percentage is calculated. To hold otherwise would prevent the legislature from reducing the rate of taxation at any time within the four years for which the collector of taxes was elected, which clearly could not be maintained by any course of reasoning, but which has been done at the will of the legislature at any time it saw proper since the adoption of our Constitution and without ever being questioned. The *334 position contended for by appellee, if correct, would also prevent the changing of the boundaries of a county, or of a municipality during the term of office of the collector of taxes therein, since such a change if the boundary was reduced would correspondingly curtail the amount of taxable property within the taxing authority from the taxes on which his commissions were based and thereby reduce the aggregate of fees for the collection of the taxes. Manifestly, no such result was contemplated by either of the sections of the Constitution referred to. Similar illustrations almost innumerable might be cited to demonstrate the fallacy of the contention.
The conclusion reached above is strengthened when it is remembered that the time when taxes become delinquent, the imposition of interests and penalties after that time, and the furnishing of coercive process for their collection from thenceforward, are all matters pertaining to the remedy for their collection, and it could hardly be possible that it was ever intended by either of the two sections of our Constitution to limit, curtail or impair the power of the legislature at any time to change or alter such remedy, except to the extent hereinbefore referred to as to the percentage of commissions and fees fixed at the time the collector became such. The argument of counsel for defendant necessarily denies such authority in the legislature and compels it to refrain from enacting any change in the remedy for the collection of taxes during the incumbency or the one who collects them, and which we think is wholly untenable and would extend the scope of the two sections of the Constitution entirely beyond the intention and purpose of the convention and the people in adopting them. It is, therefore, our conclusion that the 1924 act does not possess the vice contended for by counsel for defendant, and the court was in error in holding otherwise.
If, however, we were in error in so concluding, there yet remains another suggestion which might be plausibly urged in support of the injunction prayed for herein, and it is: That the taxpayer of the Commonwealth should not be deprived of the benefits of the 1924 act solely because it might indirectly diminish the compensation of the collector, and even illegally so, since in that event the collector would have his right against the taxing authority rather than to deprive the taxpayer of the benefits of the statute enacted in his behalf. Since, however, it is not necessary for the purposes of this opinion to so *335 judicially declare, we refrain from doing so and insert this paragraph as only a suggestion.
Disposing of the other contention, that the sheriff and his surety would be responsible for all taxes for which he receipted to the county clerk, except those which were delinquent and could not be collected, and for all of which he is required to make settlement at the expiration of his term, it may be said that such requirements were necessarily modified by implication by the provisions of the 1924 act involved in this case. Therefore, at the expiration of defendant's term he may make his settlement, showing, among other things, the amount of uncollected delinquent taxes, although yet collectible by distraint or levy, and thereby obtain his acquittance the same as he could do before the enactment of the 1924 act, since neither the state nor the county could exact any more from him after he was deprived by the provisions of the 1924 act of the right to enforce collections by levy or distraint.
Wherefore, the judgment is reversed, with directions to set it aside and to enter one perpetually enjoining defendant, as prayed for in the petition. The whole court sitting.