40 S.W.2d 432 | Ark. | 1931
The State of Arkansas, for the use and benefit of Poinsett County, and Cecil Williams, a taxpayer, brought this action against A. H. Landers, as sheriff and ex officio collector of Poinsett County, Arkansas, and the bondsmen on his official bonds, to recover the alleged excess fees, salary and perquisites in excess of $5,000 net per annum in par funds that had been received by the sheriff and collector during his last three terms of office, 1925 to 1930, inclusive. It is alleged that the appellee, Landers, had fraudulently received and unlawfully appropriated and converted to his own use sums of money as fees, salary, emoluments and perquisites of office largely in excess of $5,000 per annum, *1139 which he had failed and refused to pay into the treasury of the county as he was required to do by law; that he had failed to make an annual report as required by law, under oath, at the end of each year and a final report at the expiration of each term of office to the judge of the circuit court of the county detailing the amount of money received by such office during the preceding year, whether from salary, fees, emoluments or perquisites of such office. It is alleged further that appellee Landers, during the last six years, as sheriff and ex officio collector, has transacted a very large volume of business, and that the amount and description of the different items of fees are derived from numerous and different sources which renders the account so difficult and intricate that appellants are unable to state the amount due the treasury of the county, but that it is believed that the sum received approximates $60,000, and that the account is so voluminous and complicated that it is necessary for a master to be appointed to state the account, and that they have no adequate remedy at law. Other allegations are made in the complaint which we deem it unnecessary to detail. A number of interrogatories were attached to the complaint, and an order of court was prayed requiring appellee Landers to answer same. The interrogatories related very largely to commissions received by the collector in the collection of improvement district taxes, several drainage districts and other improvement districts being located in that county whose assessments are collected through the collector's office.
To this complaint a demurrer was interposed on several grounds, which the court treated as a motion to dismiss, and sustained.
This appeal, according to appellants, raises two questions on the demurrer: (1) "In reckoning the income of the officer is income derived from fees and commissions on collection of improvement district taxes to be included?" (2) "Is the action barred?" *1140
The basis of this action is art. 19, 23, Constitution of Arkansas, and the enabling statute enacted pursuant thereto, 4633-4644, Crawford Moses' Digest, being the act of 1875, Acts 1875, p. 124. This act was so recognized as the enabling act of art. 19, 23, of the Constitution in Griffin v. Rhoton,
The learned trial court based its action in sustaining the motion to dismiss very largely on the fact that appellee Landers holds two offices, and that he is therefore two officers, and entitled to receive $5,000 net as sheriff and $5,000 net as collector. Also that the commissions received as collector from the improvement districts was not to be taken into consideration in determining whether his net income from office exceeded $5,000.
While it is true that the sheriff, under the Constitution (art. 7, 46) holds two separate and distinct offices (Ex parte McCabe,
As to the contention that appellee is not required to account for that part of the income the collector derived from commissions on collection of improvement district assessments, we are of the opinion that such contention cannot be sustained. The collector of Poinsett. County, appellee Landers, collects a large amount of improvement district assessments. These collections are not only authorized by law, but it is a duty imposed upon the collector either in the general law or in the special acts creating such districts. For instance, under the general drainage district law, 3618, Crawford Moses' Digest, the provision is: "The amount of the taxes herein provided for shall be annually extended upon the tax books of the county, and collected by the collector of the county along with the other taxes, and for his services in making *1142
such collection the collector shall receive a commission of one per cent.; and the same shall by the collector be paid over to the county treasurer at the same time that he pays over the county funds." The provision under the special acts is similar. This is an additional duty imposed upon the collector by law and the plain provision of both the Constitution and the statute is that he shall perform "such duties as are now or may be prescribed by law." The collection of such taxes being a duty imposed by law, it is difficult to perceive on what theory he would be entitled to retain the compensation therefor in excess of $5,000 net compensation for these and all other duties performed. In Durden v. Sebastian County,
The applicable statute of limitations is 6957, Crawford Moses' Digest. "Actions on the official bonds of sheriffs, coroners, and constables shall be commenced within four years after the cause of action shall accrue, and not afterwards." This being an action against the sheriff and against his official bondsmen, this section would seem to be the applicable statute.
Other questions are argued in the briefs which we do not think it necessary to discuss. The complaint states a cause of action in equity, and no objection was made to the jurisdiction of the trial court.
The decree will be reversed, and the cause remanded with directions to overrule the demurrer and for further proceedings according to law and the principles of equity, and not inconsistent with this opinion.