Shawhan v. Harrison County

116 Ky. 490 | Ky. Ct. App. | 1903

Opinion op the court by

JUDGE O’REAR

Affirming.

Appellant was auditor’s agent for Harrison county. He was also appointed by the fiscal cofirt of Harrison county in October, 1900, to collect certain back taxes owing the county. The order of appointment contains the contract, defining appellant’s authority, as well as fixing his pay. ■ As to his authority and compensation it stated; “That this order be co-nstrued to include the collection only of such taxes as to which the sheriff has been exonerated, and such taxes as are due the county separately from the State, and as to which taxes he can not recover or collect as said auditor’s agent, and for his services in the collection of said taxes he is to have an amount equal to one-fourth of all sums so collected.” It is the duty of auditor’s agents to cause omitted property to be assessed for taxation, and to collect the taxes due thereon. They aré primarily, assessing officers. They have no authority to collect any taxes except .from such property as may have been omitted from assessment. Inasmuch as the same assessment operates for both State and county purposes, the act of the auditors’ agents in procuring the assessment of omitted properties inures to the benefit of the counties. In the contract involved here the parties have carefully excluded from it any act of appellant as auditor’s agent. What he was employed by this order to do was entirely outside of the range of his official duties.

Acting under the authority of this appointment, as appellant claims, he collected from certain distillery ware-housemen from October 14, 1890, to April 6, 1892, sums aggregating $617.95, as taxes due Harrison county on distilled spirits contained in bonded warehouses. Sections -1105-4114, inclusive, of Kentucky Statutes, govern the assessment and collection of taxes on distilled spirits. In short, the person or corporation having the custody of distilled spirits on September 15th of each yfear is made liable primarily for the taxes thereon. Such custodian pays the taxes, but is given a lien on the spirts for the sum so paid,, and interest, as against the actual owner. As the spirits, are or may be in bond to the United States government for the taxes due it, it is provided (sections 4110, 4111) that the warehouseman shall report to the Auditor of Public Accounts the. quantity of liquors so held by him, and when the United States government tax will be due, and such as will not be due before the 1st day of March after the1 assessment. The State tax shall be due on the 2d day of January, May, and September next, or whenever the spirits are removed from the warehouse. If the tax is not paid within five days after it is due, it is declared to be delinquent. This tax is required by section 4111 to be paid “to the officer entitled to receive the same.” By section 4129, Kentucky Statutes, the Sheriff is by virtue of his office the collector of taxes of -the county if he executes the bonds required by law. In default thereof, the fiscal court may appoint a tax collector. The taxes on 'the spirits which were paid to appellant were presumably collectible by the sheriff of Harrison county, nothing appearing that he had failed to execute the proper bonds. It is neither alleged nor shown that the sheriff had ever been -exonerated from their collection. By statute he was allowed 4 per cent, for collecting these taxes. We very much doubt whether it was ever really, contemplated by both parties that these and similar taxes were to be embraced by the order, although its terms are broad enough to include them. But, however that may be, under th-e circumstances as shown,, appellant was not even technically entitled to receive them. Harrison county sued him to recover the sums collected, with interest from the dates of collection. His answer claimed a credit for one-fourth of the sum collected, and in addition, by way of counterclaim and set-off, he claimed that appellee had wrongfully refused to permit him to collect some $1,500 of other and similar taxes, and had collected them itself, and that he was entitled to 25 per cent, of that sum also. The court sustained a demurrer to these pleas.

We are of the opinion that the pleas are not.good. The taxes collected were not of the character covered by the terms of the contract, as the sheriff had not been exonerated from their collection. Consequently appellant .was neither authorized to collect them nor to receive pay for their collection.

It is suggested that appellee can not maintain this action unless it admits appellant's authority to collect the taxes under the contract; for, it is said, if appellant was not so authorized, their payment by the taxpayers was voluntary, and did not operate as a discharge of their obligation. It is claimed that, until the taxes were paid to one authorized to collect them, they were not paid at all in point of law, and are yet owing by the taxpayers to the county. Appellant was, as to the taxpayers, at least a de facto official, acting under claim and color of official authority. His acts are binding on himself, at least, as well as upon the county when ratified by it; he will be required to deliver to the rightful claimant the money he has collected wrongfully in its name, while acting ostensibly within, yet actually beyond his authority.

The action was properly brought in the name of Harrison county, as the money was owing to the county in its corporate capacity and not to the fiscal court, who are but directors of the county’s fiscal affairs.

The judgment is affirmed, -with damages.