119 Ky. 428 | Ky. Ct. App. | 1905
Affirming.
M. A. Neely was sheriff of Logan county for the years 1898, 1899, 1900, and 1901. Having executed bonds, he was the collector of the county levy for those years. He also executed bond each year as collector of a railroad tax levied to pay the interest and to create a sinking fund to pay a railroad bonded debt owing by the county. Appellant was sole surety upon each of these bonds. Neely defaulted. This suit was brought by the county against the surety to recover on the several 'bonds the sums alleged to be due as balances of the taxes for each of the years named. The sui t was to recover $28,445.81 in the aggregate, but the judgment was for'$17,414.31. Both parties have appealed.
Appellant contends that the petition is insufficient to uphold any judgment. This argument rests upon the assertion that until the sheriff has settled his accounts -with commissioners appointed by the fiscal court, and until such settlement is confirmed, no .action will lie against the sheriff; that the county is limited in its remedy to a proceeding-under section 4146, Kentucky Statutes, 1903, which authorizes the fiscal court at its October term to appoint commissioners to settle with the sheriff, and provides that such settlement shall be filed in the county court clerk’s office, and1 then lie over for exceptions to be tried by the county court, with right of appeal to the circuit court to either party. But this section is not exclusive of all other proceeding» where the sheriff refuses to settle at all, or absconds and fails to settle. Excepting two of the years in suit, th,e circuit court found (and we think correctly so) that there had been no such settlement, and no settlement whatever by the sheriff. He had left the State, and kept beyond its jurisdiction. This suit brought against the surety :mve the eircu^ murt de
The record shows the amount of taxable property assessed in Logan county for each of the years, and the number of tithes. The rate of levies made by the fiscal court for each year makes it a simple matter of calculation to find the total sum chargeable to the sheriff for each year. Exonerations and delinquents allowed are also shown, which, deducted from the total of taxable property assessed, leaves the sum upon which the sheriff’s statutory commissions are calculated, except where he collects penalties from taxpayers, or is being charged with them as being collectible, in which event he ought, of course, to be credited with commission for collecting them, as if they were taxes. Deducting the credits named leaves the sum payable by the sheriff, not counting penalties and interest chargeable to him for his own failure to pay over the taxes as required by the statutes. Receipts from the treasurer or other persons to whom the fiscal court had ordered the money paid, deducted from the last-named remainder, show The net amount of taxes collected and collectible for any one year, for which the sheriff and his surety are liable to the county, if the sheriff pays it .over when due.
The foregoing is the basis upon which the circuit court proceeded. For the years 1898 and 1899 it appears that the sheriff actually made settlements with commissioners or committees appointed by the fiscal court concerning the county levy and poll taxes, but not including the railroad tax. For the year 1898 the settlement was filed in the county court clerk’s office, where it was excepted to by the sheriff. The sum finally found due upon that settlement-the sheriff paid to the county, to the persons as ordered by the
For the year 1900 no such settlement was made and filed, though a settlement was made and filed in the fiscal court-But- it was ordered by the court to be withdrawn on the same day it was filed, and was never filed in the county court for exceptions, nor ordered to record by that tribunal. The
In addition to the foregoing was the question of penalties and interest. For the year 1898 the commissioner® had . charged penalties against the sheriff for taxes not collected • and paid over within the time fixed by statute. The sheriff filed exceptions in the county court, where the judgment was against him. Upon appeal to the circuit court, it was adjudged that the sheriff was not liable for the penalties. In this action the trial court held that, inasmuch as that judgment on the appeal had been reversed or vacated, it was binding upon the county as res ad judicata. In this we concur. But the circuit court adjudged that for other years the question of the sheriff’s liability for penalties was not
If the taxpayer does not pay his taxes on or before December 1st of the year in which they are dtie, a penalty of C per cent, is added against him, which must be collected by the sheriff as the taxes are. The penalty goes to the county (section 1885, Kentucky Statutes, 1903), and, when collected or collectible, the sheriff is liable for it to the county, precisely as he is for the taxes. By section 4147, Kentucky Statutes, 1903, if the sheriff does- not collect and pay over to the county all the collectible taxes in his hands by January 1st after the year in which they were due and payable, he is liable to the county for a penalty of 0 per cent, on the amount so collected or collectible by him, and not paid over. This last-named penalty is against the sheriff, and is calculated upon the total sum-due the county by him on January 1st after it became due, whether for taxes and penalties against the taxpayers collected, or for taxes and penalties collectible, but not collected. The money collected by the sheriff upon taxes and penalties due. the county, and taxes and penalties collectible, but not collected, are treated as debt due by the sheriff to the county on January 1st after they become due. They constitute, then, an obligation to pay money, and upon their total the sheriff is liable for interest to the county at G per cent, per annum from that date until paid. The interest is entirely different from, and is in addition to, the penalty of (i per cent, upon the gross sum due and unpaid on January 1st. The penalty is a cumulative remedy imposed by statute as additional incentive to the prompt payment of the county revenues by the collecting officer. So far the trial court proceeded' in accord1 with what has just been said in entering judgment herein. In addition, the court adjudged interest at 6 per cent, per an
Counsel for appellee urge that the interest upon the penalties is too small to justify a reversal of the •judgment, for, he says, payments' were made in so short a time after the penalties against the sheriff attached, which more than satisfied them, that the amount of interest accumulated is inconsiderable-. Payments applied by operation of law must first go to extinguish interest-bearing liabilities. As the payments made were not sufficient to discharge the interest-bearing obligation of the sheriff, it follows that, by adjudging interest upon the penalties, where all were calculated as of the same rank, and added together when payments were c-rédited, the effect is that the interest continues even until now upon the penalties, under the form of the judgment. The penalties amount to several thousand dollars, and the interest carried into the judgment on their account is too considerable to pass unnoticed.
For the year 1900 the court did not adjudge a penalty against the sheriff for his failure to pay over the county levy and poll taxes to the county, because there was no person to whom he was ordered to pay them; there being no treasurer at that time. This was in accord with the decisions in Bates v. Knott Co., 67 S. W., 1006, 24 Ky. Law Rep., 73, and Pence’s Admr v. Nelson County, 53 S. W., 25, 21 Ky. Law Rep., 724.
After the sheriff had made default, and after the expira
For the year 1900 the sheriff is shown to have paid to various persons to whom allowances had been made by the fiscal court sums aggregating $6,654.50, represented by 111 fiscal court warrants or orders of allowance. The evidence is unc-ontradicted that the sheriff paid these sum's for the county. Their validity is nowhere questioned. For that year there being no county treasurer, it was the sheriff’s duty to have paid them out of the county levy funds in his hands, and he should have been credited accordingly. The circuit court proper!}’ allowed the sheriff credit for them.
The railroad taxes form a separate basis of contention in this case. The fax was levied originally by virtue of a special statute applicable alone to Logan county, approved April 7, 1886. 1 Acts 1885-86, pp. 1213-1217, c. 532. That act provided for the selection of three sinking-fund commissioners by the county court of claims, the one of whom whose term of office was shortest being ex officio treasurer of the sinking fund. It directed the levy of a tax sufficient to pay the interest semi-annually, and- to create a sinking fund for the ultimate payment of the bonds which had beén executed by the county in settlement of a railroad subscription made by' it. The act provided that the sheriff should be collector of this tax, for a settlement by the sheriff with the sinking fund commissioners, and that he should pay the taxes collected by him on account of the railroad debt to the sinking fund treasurer at certain intervals. What happened is that the sheriff collected these taxes and paid them over — some part of them for each year — to the treasurer of the sinking 'fund. But he never paid all collected or collectible by him for any one year within the time specified in the act or at
Appellee contends, and the circuit court so- adjudged, that the act of 1886 was superseded by the Constitution of 1891, and sections 1833 to 1885, Kentucky Statutes, 1903, passed in conformity thereto, creating the fiscal court, and regulating the matter of levying and collecting county taxes. Prior to the Constitution of 1891 the county court, or the county court of claims, as it was sometimes called to distinguish it from the county court, presided over by the county judge alone, had jurisdiction of the fiscal affairs of the county. Under the present Constitution, and-sections 1S33-1893, Kentucky Statutes, 1903, sole and exclusive jurisdiction is given the fiscal courts oft the several counties of the levy and collection of the county taxes, for whatever purpose they may he imposed. If the debt were created under a previous general or local act, it remained an obligation of the county till discharged.. No subsequent statute could impair its validity. Yet it Avas within the power of the Legislature to change .the method and time of collecting taxes for ptaying the debt., It AAras also competent to change the rate of taxation, and regulations affecting penalties for nonpayment of taxes, as well as all matters pertaining to tax collectors’ liabilities and duties, so long as the change did not impair the obligation of the contract by which the original debt was created. When the Legislature, by sections 1833 to 1885, Kentucky Statutes, 1903, made it the duty of the fiscal court to leAry the tax, and to proA'ide for its collection and proper application, as well as the manner and time of its collection, those provisions must be deemed as ■ creating a new and comprehensive system of laAV on the subject, superseding preceding_ general and local statutes covering the same subject. Although section 1882 of the Kentucky Statutes, as compiled by Carroll, con
There is no part of the act of 1SS6 concerning the collection of the railroad tax in Logan county not covered by the present general law. The appointment of sinking fund commissioners, and the exercise of duties to be performed by them, are not prohibited by anything in the general law. But if it be thought that there was anything in the local statute that gave the county the right to avail itself of the service of commissioners for its sinking fund, which by the general law is. not given, then by the closing sentence of section 1S40, Kentucky Statutes, 1903, concerning the jurisdiction and' powers of the fiscal courts generally, it is provided : “And [the fiscal court] shall have jurisdiction of all such other matters relating to the levying of taxes as is by any special act now conferred on the county court of levy and claims.” The existence of a valid debt owing by the county, and the express authority to levy taxes to pay it, involves and allows the light to create a sinking fund to meet the debt when it matures. If it be deemed expedient by the fiscal court to avail itself of the services of other persons as commissioners to hold and employ such funds unto the day when they may be required to discharge the debt for which they have been raised, we see1 nothing in the statute to prohibit it. On the contrary, it seems to be well within the expression- in section 1840, Kentucky Statutes, 1903, concerning the jurisdiction of fiscal courts, “to regulate and control the fiscal affairs and property of the county, . . . and to execute all of its orders consistent with law and within its jurisdiction.” The act of 1886 making it the duty of the sheriff to settle his accounts with the sinking fund
■ he circuit court, in'its judgment, seems to have proceeded upon the foregoing basis in the adjustment of the sheriff’s liabilities for the railroad taxes. When the whole of the sheriff’s liability is ascertained under the foregoing princi
The judgment of the circuit court is affirmed on the cross-appeal, but is reversed on the direct appeal. The cause is remanded, that a judgment may be entered in conformity herewith.