Commonwealth v. Wade's Adm'r

104 S.W. 965, 126 Ky. 791, 1907 Ky. LEXIS 100

• Court: Court of Appeals of Kentucky
• Decided: October 23, 1907
• Status: Published

Opinion

Opinion of the Court by

Judge Barker

Affirming.

The appellant, the Bank of Columbia, obtained a judgment in the Taylor circuit court against the county of Taylor for the sum of $4,000, with interest at the rate of 6 per cent, per annum from the 25th day of March, 1897, until paid. Afterwards it moved the fiscal court to make a levy to pay its judgment. This they declined to do, whereupon the bank instituted an action against the members of the court to compel them to make the levy for the payment of its judgment. Without going into the proceedings of that action, it is sufficient to say that judgment ivas rendered in favor of the county, refusing to require the fiscal court to make the levy prayed for. From that judgment the bank prosecuted an appeal to this court, where it was reversed with directions to the lower court to enter a judgment requiring the members of the fiscal court to make the levy as demanded by the bank. All of this appears more fully in the opinion of this court delivered in the case of Bank of Columbia v. Taylor County, 112 Ky. 243, 65 S. W. 451. Upon the return of the case, a judgment was entered pursuant to the mandate of this court, requiring the fiscal court to make a levy upon the property in the county subject to taxation, at a rate sufficient to pay the bank’s judgment. On the 3d day of April, 1902, the fiscal court made a levy of 60 cents on each $100 in value of all property subject to taxation in the county, and appointed W. B. Trotter to collect the same, who failed to qualify or assume the duties of the office in any way. For reasons which we need not stop to examine or comment upon, there had not been for many years a sheriff in Taylor county; that office being vacant and its duties performed from time to time by collectors appointed for-that purpose.

On the 13th day of January, 1902, D. S. Wade was appointed collector of taxes both for State and county purposes, and accepted the apointment and qualified for the positions by taking the oath of office and executing the bonds required by law, with appelleés J. N. Turner and Henry R. Turner as his sureties on both bonds. The bond executed to the county is as follows: “We, D. S. Wade, special collector of poll tax and ad valorem tax of Taylor county for the year 1902, and J. N. Turner and Henry R. Turner, his sureties, bind and obligate ourselves jointly and severally to the Commonwealth of Kentucky, that said. D. S. Wade, special collector, shall faith fully perform his duties. Witness our signatures this 13th day of January, 1902. ■ D. S. Wade, J. N. Turner. Henry R. Turner. ’ ’ After the levy of the tax by the fiscal court to pay its judgment, the bank notified the collector, D. S. Wade, thereof, and urged him to at once proceed to collect the tax and pay it over in satisfaction o f the judgment. This he wholly failed find refused to do, and no part of the levy was ever collected or paid to the bank. Thereupon the bank instituted this action against the collector on his bond, alleging the foregoing facts and praying a judgment against him and his sureties for the payment of its debt, interest, and costs. To this the defendants filed an answer, which presented the following defenses: First, that the levy to pay the bank’s debt was never certified to him for collection; second, that the fiscal court having, in its order making the levy, appointed W. B. Trotter as special collector thereof, it was not the defendant’s duty to collect it. A demurrer of the plaintiff to this answer having been overruled, it declined to plead further, and thereupon its petition was dismissed, of which it now complains.

As preliminary to a discussion of the responsibility of the collector, T). S. Wade, for his failure to collect the bank’s claim, it is necessary that we should examine certain sections of the Kentucky Statutes of 1903 bearing upon the question in hand; and, in order that these may be before our mind during the discussion, they are copied herein in full. Section 4129: “The sheriff, by virtue of his office, shall be collector of all state, county and district taxes, unless the payment thereof is, by law, directed to be made to some other officer.” Section 4131: “On the failure of the sheriff to execute hond and qualify as hereinbefore provided, he shall forfeit his office, and the county court may appoint a sheriff to fill the vacancy until a sheriff is elected, or it may appoint a collector for the county of all moneys due the State and county or taxing districts authorized to be collected by the sheriff, or it may appoint a separate collector of the moneys due the State, county or any taxing district thereof during the vacancy in the office of sheriff; and in the event the county court fails for thirty days to appoint a collector of money due the State, the Auditor of Public Accounts may appoint a collector thereof. Such collectors shall, within ten days .after their appointment, execute bond as required of the sheriff, to be approved by the county court, and if the bond be not executed within said time, the appointment of another collector may, in like manner, be made and qualified.” Section 4147: “The sheriff or collector of the state and county revenue of each county of this Commonwealth shall on the first day of May, June, July, August, September, October, November and December in each year, report under oath, to the county court of his county, the amount of state and county taxes he has collected, together with all fines, forfeitures or money, or any other account that shall have been received or collected by him, showing in said report the amount collected for and belonging to each particular fund, for which such revenue or money may be intended. Said report shall be filed and recorded in a separate book furnished by the county clerk for that purpose, which shall be open for inspection in the office of the county clerk. The sheriff or collector shall be required by the fiscal court to pay a penalty of six per centum on the amount of all taxes levied by the said court that shall be uncollected, if collectable, or if collected, shall not have been paid by him on proper demand to the parties or funds entitled thereto, on the first day of January in each year after he was required to collect such taxes, which penalty shall inure to the benefit of the county. And if the sheriff or collector" shall, without reasonable excuse, fail to pay to the person entitled thereto upon proper demand of each person, his agent or attorney, the amount due upon any claim allowed by the fiscal court, and payable out of taxes levied by the fiscal court, if collected or collectible by him-, he and his sureties on his county revenue bond shall be liable therefor, together with a penalty of fifteen per centum of the amount of such claim which shall be recoverable by the person entitled thereto, or his personal representative, in any court having jurisdiction of the subject-matter. Any sheriff or collector who shall fail to report as herein required shall be liable to indictment in the county of his residence, and fined not less than one hundred dollars nor more than five hundred dollars for each offense. ”

With these sections of the statute before us, we will now proceed to discuss the duty of the collector, Wade, to collect the levy made for the payment of the bank’s judgment. Observe that by the terms of section 4129 the sheriff, by virtue of his office, shall be the collector of all State, county, and district taxes, unless the payment thereof is by law specially ilirected to be made to some other officer. The words “by law” do not mean an order of the fiscal court. They mean a statute, and therefore, where there is a sheriff in a county, it is his duty to- collect all State, county, and district taxes, unless by the terms of some statute the collection is to be made by some other officer. If there had been a sheriff in Taylor county, there is no doubt that it would have been his duty to collect the special assessment levied for the judgment of the bank’s debt. Now, by section 4131, where there is no sheriff, a collector is authorized to be appointed, and under the terms of the section the county court may appoint one collector to collect the money of the State, county, or taxing district authorized to be collected by the sheriff, or it may appoint a separate collector of the money due the State, the county, or any taxing district thereof during a vacancy in the office of sheriff. This language does not authorize the appointment of one collector to collect the regular revenue of the county and another collector to collect the special assessments as in the- case in hand. The authority of appointment of collectors is limited to one collector for all taxes, whether state, county, or district; or the county court may appoint a collector alone to collect State taxes, and another for the county or district; but, when a collector is appointed to collect the county revenue, another may not be appointed to collect some special assessment. The collector or collectors authorized to be appointed by section 4131 take the place of the sheriff, and fill his office so far as the collection of revenue is concerned; and it is their duty to collect all taxes which it would have been the duty of the sheriff to collect had that office been occupied at the time of the levy. D. S. Wade having been appointed both as the collector of the State taxes and the county taxes for the year 1902, it was his duty to collect all taxes levied and collectible for that year, whether State or county, whether regular or special. The nomination of W. B. Trotter as collector by tbe fiscal court was void for want of authority to. make it, and the appointee'evidently so considered it, as he never qualified or undertook in any way to discharge the duty sought to be thrust upon him. By section 4147, the sheriff or the collector of the State and county revenue of each county is required to report on certain named days to the county court the amount of State and county taxes he has collected, and is liable to a penalty of 6 per cent, on the amount of all taxes levied by the fiscal court that shall be uncollected, if collectible, or, if collected, shall not have been paid by him on proper demand to the parties or funds entitled thereto. And, if the sheriff or collector shall, without reasonable excuse, fail to pay to' the person entitled thereto' upon proper demand of each person, his agent or attorney, the amount due upon any claim allowed by the fiscal court, and payable out of taxes levied by the fiscal court, if collected or collectible by him, he and his sureties on his county revenue bond are liable therefor, together with a penalty of 15 per centum of the amount of such claim, which shall be recoverable by the person entitled thereto, or his personal representative, in any court having jurisdiction of the subject-matter. This statute seems to cover and be conclusive of the question we are now discussing. Here was a judgment against the county, to pay which a special levy was made .of 60 cents on each $100 worth of property in the county subject to taxation. We have seen that it was the collector’s duty to collect this tax, and pay off this judgment. Although it is admitted that as soon as the levy was made his attention was called to it and demand was made on him to collect the tax, he failed and refused so to do. He does not pretend that the tax was not collectible, and therefore his negligence or willful failure to discharge his duty brings him within the very letter of the statute, which makes him and his sureties responsible on his official bond for his delinquency in the premises. This judgment was not for money due under a special railroad tax, but was for money borrowed from the bank to pay off a compromise which the county had made with certain of its creditors holding railroad bonds. This claim was like any ordinary claim against the county, and, the court having ordered the levy to be made to pay it, it was to be collected as the ordinary revenue of the county was to be collected, in the same manner and by the same officers. There is no provision in the statute to which our attention has been called which authorizes generally a special certification of the county levy to the sheriff in order to make it collectible by him, and a careful search on our part has not led to the discovery of any such statutory requirement. It is the duty of the sheriff or collector to take notice of the levy of taxes by the fiscal court, and to collect and pay over or disburse it as by law required. This the collector failed to do, and by the very terms of the statute he is responsible on his bond for the default.

There can be little doubt that the fiscal court, by what they did in the matter, were undertaking to nullify the judgment of the circuit court. The appointment of the special collector, Trotter, of whom nothing was ever afterward heard, and who in no way attempted to quality as collector, or discharge the duties of that office, point to the fact that this was an arrangement by which the fiscal court could seemingly comply with the judgment, but without, in fact, accomplishing anything. This unlawful purpose could only be successful by the failure of the regular collector of the revenue to do his duty in the premises, and to collect the taxes provided for by the special levy. Such juggling with the decrees and judgments of the courts cannot be tolerated. ' Ours, as has often been said, is a government of laws, and, if the judgments of the courts enforcing the law may be thus nullified or disregarded either by overt act or culpable negligence, government is at an end. The county is as amenable to the law as an individual, and it is the high duty of its officials to enforce the law wherever and whenever they are its ministers. There is nothing in the case at bar to excite sympathy for this manifest effort on the part of the county of Taylor, through its officers, to evade the payment of this judgment. The bank loaned it the money in order to compromise at 50 cents on the dollar its outstanding bonds, and there is not the slightest basis for the claim that this debt is either illegal or unjust. The county collects its taxes on all of the bank’s property year by year in order to support its government, and then deliberately refuses to pay the corporation that which is admitted to be justly due it. It seems to us high time that it should be taught as a practical lesson, as well as a theory, that there are none so high as to be above the restraints of the law, or so low as to be beneath its protection. The answer of the defendants does not set forth a valid defense to the cause of action set up in the petition, and the general demurrer should have been sustained.

The judgment is reversed for further procedure consistent with this opinion.