95 S.W.2d 584 | Ky. Ct. App. | 1936
Affirming.
The appellant and plaintiff below, Mary F. Overstreet, is now, and was at the time of the filing of this action by her in the Boyle circuit court against appellees and defendants below, Boyd county fiscal court and its members, the sheriff of Boyle county, having been elected at the regular election in 1935 to fill a vacancy in the office produced by the death of her husband, who was elected to the office at the regular November election in 1933, but who died in June, 1934. Upon his death, W.R. Purdom was appointed to fill the office until it could be filled by election at the time plaintiff was elected. During Purdom's incumbency, he began the collection of the taxes for the county's fiscal year 1935, as based upon assessments made in 1934, and succeeded in collecting more than $5,000, upon which, in his settlement made upon retiring from office, he was allowed the statutory fee of 10 per cent. Perhaps he had collected, all told, not exceeding 10 per cent. of the entire amount due the county, and plaintiff as his successor completed the collection of the balance of it. When it came time for her to settle for the collections she had made, she demanded the *762 same statutory 10 per cent. on the first $5,000 that she had collected, upon the theory that a proper interpretation of the applicable statutes, viewed in the light of all applicable constitutional provisions, entitled her to that commission, although it would result in a duplicate payment of that maximum percentage on the first $5,000 collected for the same fiscal year.
The fiscal court entertained a different opinion and declined to allow her as compensation any more than 4 per cent. on her total collections. She then filed this declaratory judgment action against that court and its members for a declaration of rights, and in her petition she set out the facts as we have outlined them. Upon final submission, the court determined that she was not entitled to the compensation for which she contended, and which necessarily also determined that the provisions of the applicable statutes were confined to the "office" of sheriff as county tax collector and did not apply to the individual incumbent as an "officer," as the word is employed in sections 161 and 246 of our Constitution relating to compensation of city, county, and state officers. The court therefore concluded that the construction made in the two cases chiefly relied on by counsel for plaintiff [Whittenberg v. City of Louisville,
"J.W. Overstreet was elected sheriff of Boyle county for the regular term beginning the first Monday in January, 1934, and died in office in June, 1934. W.R. Purdom was appointed to fill the office until the regular November, 1935, election, and at that election Mrs. Mary F. Overstreet, the plaintiff, was elected sheriff for the remainder of the term. She entered upon her duties November 14, 1935, and has been the sheriff from that time on.
"Mr. Purdom, as sheriff, collected upon the tax levy based upon the assessment made as of July 1, 1934, in excess of $5,000 of those taxes. He was paid *763 the commission of 10 per cent. on the first $5,000 collected, as authorized by section 1729 of the Statutes. After Mrs. Overstreet became sheriff, she proceeded. to collect the remainder of the 1935 taxes; a considerable part not having been collected by Mr. Purdom, as the taxpayers had until the last of February, 1936, for paying before the penalty attached.
"In this case, a suit for declaration of rights, plaintiff is insisting that she as sheriff is entitled to 10 per cent. commission on the first $5,000 of these taxes collected by her and collectible in 1935, 1936, and 4 per cent. on the balance. The Boyle county fiscal court, on the other hand, insists that, as Mr. Purdom had already collected $5,000 of those taxes, and had been paid therefor the commission of 10 per cent. thereon, plaintiff is not entitled to charge 10 per cent. commission on the first $5,000 of taxes she has collected, but only 4 per cent., for the reason that, under the circumstances of this case, only one such commission of 10 per cent. may be charged, and that upon the first $5,000 of these taxes collected.
"The question in dispute, as is seen, involves the compensation permitted the sheriff for collecting county revenue. The law regarding that is contained in section 1729, Kentucky Sts., and repeated in section 4168. The former provides: 'The sheriff, for collecting the county revenue, ten per cent (10%) upon the first five thousand dollars ($5,000.00), and four per cent (4%) upon the residue: Provided, That in no case shall the aggregate annual compensation of the sheriff for official services exceed five thousand dollars ($5,000.00), independent of the compensation of legally authorized deputies and assistants.'
"Section 4168, making provision for the commissions on both state and county taxes collected, is as follows: 'The sheriffs or collectors shall be allowed by the auditor of public accounts the following commissions upon the sums collected or accounted for or paid into the treasury in each year. Upon the first five thousand dollars ($5,000.00) ten per centum (10%), and upon the residue four per centum (4%). He shall be allowed by the treasurer of the county ten per centum (10%) upon the first five thousand dollars ($5,000.00) of the county revenue collected and four per *764 centum (4%) upon the residue; Provided, That in no case shall the aggregate annual compensation of the sheriff for official services exceed five thousand dollars ($5,000.00) independent of the compensation of legally authorized deputies and assistants.'
"Now it is the contention of plaintiff that the words 'the sheriff' in section 1729 embrace each person holding the office and making the tax collections based on the preceding levy; that the right to charge this 10 per cent. commission upon the first $5,000 of taxes collected is not to be confined to the first $5,000 of taxes collected, if more than one sheriff in the course of the tax collections engages in making the collections for any year; that this statute shoud be construed as applying to each of such officers to the extent of allowing each 10 per cent. commission on the first $5,000 of the county revenue that he collects. In stating this contention, counsel for plaintiff urge that the words 'the sheriff' mean each person so holding the office during the period covering the tax collections involved, that the reference is to the officer, not the office, citing in support of that construction Whittenberg v. City of Louisville,
"As stated, these taxes are from the levy based upon the assessment of the preceding year. In Green County v. Howard,
"Those decisions — and there has been no departure from them — make it plain that in the collection of the county levy the sheriff, so far as concerns his compensation therefor, is handling one fund. With that in mind, it seems to me that the statute, in authorizing a commission of 10 per cent. * * * for the collection of the 'first five thousand dollars' of taxes, necessarily means the first $5,000 of the tax fund collected by the sheriff. When the first $5,000 of taxes has been collected, and if the fund is to be treated as an entirety, there can be no second first $5,000 of that fund remaining to be collected by the sheriff. And therefore the meaning to be given the words 'the sheriff' in these two sections of the Statutes is that they refer to and designate the sheriff who collects the first $5,000 of county revenue for the year. That exhausts the right to the commission of 10 per cent., not only as to the sheriff who in fact makes that collection, but as to any succeeding sheriff who may finish *766 the collection of the county taxes for that year. In short, it is not intended by these sections that the county tax fund for any year shall be burdened more than once in favor of the sheriff or sheriffs by the charge of 10 per cent. commission, and that once is upon the initial $5,000 of the tax fund collected. Neither the language of section 1729 nor of section 4168 imports, as I understand their provisions, that the meaning of the phrase 'the first five thousand dollars' shifts with each sheriff who may engage in collecting these taxes; that for the first sheriff it means the first $5,000 of the tax found collected; that as to the next Sheriff so engaged it means simply the first $5,000 he collects from the residue of the taxes, and so on with each succeeding sheriff who happens to collect as much as $5,000 of those taxes.
"Plaintiff insists, however, that the construction now rejected finds support in Madison County v. Hamilton,
Late amendments to section 4135 (see Ky. Stats. Supp. 1933) were involved in the more recent case of Petty v. Talbott, Auditor,
The text in 46 C. J. 1019, sec. 250, relating to the governing rule in the construction of statutes fixing compensation of officers, says in part: "Statutes relating to the fees and compensation of public officers must be strictly construed in favor of the government, and such officers are entitled only to what is clearly given by law." In a different subdivision of that section and on the same page, under the heading "Compensation Based on Population" of the taxing authority, the text says: "An 'annual salary' based on population as shown by election, must be calculated for the year as a whole." In note 98 cited to that text is the case of State v. Linville,
Wherefore the judgment is affirmed.
The whole court sitting.