Fidelity & Deposit Co. v. Commonwealth

| Ky. Ct. App. | Oct 26, 1898

JUDGE PAYNTER.

delivered the opinion oe the court.

At the November election in 1894, Thomas Sheehy was elected sheriff oí Bracken county; and on the first Monday in January, 1895, he took the oath of office and exe» cuted the bond required by law. On June 6, 1895, Sheehy* as sheriff and collector of the county levy for the yean 1895, executed a bond to faithfully perform his duties as such; and on this bond the appellant, Fidelity and Deposit Company of Maryland, was accepted as surety. It appearing that he was indebted to the county on account of his collection of the county levy for the year named, this action was brought on the bond. The appellant seeks to avoid its liability on the bond upon grounds as follows: (1) That the County Court was not authorized to accept the bond which Sheehy executed with it as surety; (2) that he was sheriff of the county during tbe years 1893-94, and defaulted in the payment of certain sums to the county, and as the county judge- knew this fact, and failed to notify it, his conduct was a fraud upon its rights, which invalidated the bond.

This bond was executed under section 1884, Ky. Stat. (Act April 18, 1892), which requires a sheriff or other officer who may collect the county levy, before he proceeds to do so, to execute a bond to the Commonwealth of Kentucky, in the County Court, in a sum equal to double the amount of taxes likely to come into his hands, for a faithful performance of his duty, and to pay over in due time to the proper party, as directed by the court, all moneys collected by him. It appears that some, if not all, of the money for which this action was brought, had been collected previously to the execution of this bond. It was, however,, part of the, county levy for the year 1895. Under the rulings of this court, previous to the enactment of the statute now in force, probably there could have been no recovery on the bond which the appellant signed as surety. The General Assembly seems to have desired to provide against such contingencies; so it incorporated in the revenue law of the State section 4134, Ky. Stat. (Act of November 11, 1892), which reads as follows: “The County Court may require the sheriff to give an additional bond or bonds, with good surety, to be approved by the county court-, whenever it may deem the interest of the State or county demands; and the sureties on all the bonds executed by the sheriff shall be jointly and severally liable for any default of the sheriff during the term in which said bond may be executed, whether the liability accrued before or after the execution of such bond or bonds.” Under this section the County Court has the power to require the sheriff to give an additional bond, with good surety, whenever it may deem the interest of the State or county requires it;, and a surety in such bond is liable for any default of the sheriff during the term covered by it, whether the liability accrued lefore or after its' execution. The failure of the order of the County Court to state that the bond was an additional one is wholly immaterial. For-whether the bond was an additional bond or not, it was. to protect the county in case he, as collector of the county levy, collected and failed to pay it over on the order of the County Court, and also embraces any sum or sums which he may have collected on that account for the year 1895, previous to the execution of the bond.

It is claimed that the- act approved October 17,. 1892, in connection with the November act, repealed son much of the act of April 18, 1892, as is embraced in section 1884, Ky. Stat., and, therefore, there was no law; authorizing the execution of the bond upon which this action was brought. The act of October 17,1892 (Acts 1891-92-93, p. 268), is an act “creating a fiscal court in the several counties of this Commonwealth.” It makes no reference whatever to the act of April 18, 1892; neither does it make any provision whatever for the execution, by the sheriff, of a bond for the collection of the county levy. And the act of November, 1892, is a general one, covering both State and county revenue. We are of the opinion that these acts do not repeal section 1884, Ky. Stat. The bond required of a sheriff under section 4556, Ky. Stat., may be denominated his “official bond;” that under section 4133, his “general revenue bond;” and that under section 1884, “a special county levy bond.”

To sustain the second proposition, counsel for appellant • relies upon that principle of law which is to the effect, if a party taking a guaranty from a surety conceals from him facts which go to increase his risk, and suffers him to enter into a contract under false impressions as to the real state of facts, such concealment will amount to a fraud, because the party is bound to make the disclosure; and the omission to make it under such circumstances is equivalent to an affirmation that the facts do not exist. This principle of law is applicable to transactions between individuals, and between individuals and corporations, but does not apply to public officials. This is the effect of Com. v. Tate, &c., 89 Ky., 587, [13 S. W., 113]; Wade, &c., v. City of Mt. Sterling, 18 Ky. Law Rep., 377 [33 S. W., 1113]. The judgment is affirmed.

On February 7,1899, the following response to a petition for a rehearing was delivered by Judge Hazelrigg:

Since the decision of this case, we have had under consideration the question whether the bond executed under sec. 4133 was intended to embrace tbe collection of tbe .county as well as of the State revenue, Howard, &c., v. Com., 20 Ky. Law Rep., 1411, and for tbe reasons given in that case we reached tbe conclusion that it was tbe intention of tbe General Assembly that both county and State revenue were embraced therein.

. We also reached tbe conclusion that tbe aets, providing for various county levy bonds, including tbe act embracing section 1884, Ky. Stat., bad not been repealed. We need not repeat tbe reasons for our conclusion here. We have corrected the original opinion on its face to remove any seeming inconsistency with tbe Howard case.

It is true that in Schuff v. Pflanz, 99 Ky., 106, this court by Chief-Justice Pryor said: “The sheriff is required to give two .bonds — one for tbe collection of tbe revenue, and tbe other known as tbe general official bond.” • But tbe subject matter of inquiry there was, tbe bonds required of tbe sheriff for tbe failure to execute which tbe office might be declared vacant. And tbe only such bonds so required are tbe two referred to in that case.

Petition overruled.