Fidelity & Deposit Co. v. Logan County

84 S.W. 341, 119 Ky. 428, 1905 Ky. LEXIS 15

• Court: Court of Appeals of Kentucky
• Decided: January 10, 1905
• Status: Published

Opinion

Opinion of the court by

JUDGE O’REAR.

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 determine and adjudge the true amount due by the sheriff was a proper proceeding. The petition stated fully every essential of a cause of action on the bonds.

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 fiscal court. The same is' true as to the year 1899, except the record does not show the settlement made and filed in the county court clerk’s office. But it is shown by the record that the fiscal court, by an order entered upon its order book, recited that such settlement had been made and recorded, and directed the sheriff to pay the balance stated as having been found due the county, and the sheriff paid it. The circuit court found that the settlement had in fact been made and recorded as required by the statute (section 4146), and, as it had not been appealed from or- otherwise set aside in any suit or proceeding appropriate for the purpose, was binding on the county. We think the circuit court gave to this statute its true meaning. It is necessary that these settlements concerning the fiscal affairs of the county be conducted in some forum where expedition in closing them may be had. Unless when so completed they are to lxave some other effect than mere memoranda, subject to be ignored or collaterally attacked by either party at any time, they are worse than useless. While, the settlements might be subject to be reopened and surcharged for fraud practiced, or other ground for a new trial, after the expiration of the term of the court adjudging them to record, if asserted, within seasonable time, yet, after the time allowed for a review upon appeal, they are final. Although it is shown that the commissioners making the settlements for the years 1898 and 1899 allowed errors against the county, the settlements, when so recorded, are not subject to the collateral attack attempted by this suit.

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 Legislature lias provided an expeditious and simple method of carrying such settlements into a concluded state. Where the proceedings stop short o'f the course fixed by the statute, they can have none of the benefits or presumptions accorded to them as are to those which do conform to the statute. The public, as well as the county as a.corporation, are interested in the prompt collection and honest and legal disbursement of the county revenues. These settlements, when so recorded, are valuable checks upon the fiscal agents of the public, as well as constituting conclusive evidence of fixed indebtedness or of discharge from liability. To give to other settlements, though completed as between the parties, but not recorded as required by the statute, the same effect, would be to thwart the good purpose of the statute by rendering it useless. For the year 1900 the circuit court therefore proceeded as if no settlement had been attempted. For the year 1901 there was no settlement. Thus the original indebtedness of the sheriff to the county on account of the county levy and poll taxes for the years in suit was fixed by the circuit court upon the proper basis.

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 affected by the judgment alluded to. In that conclusion we concur also.

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 annuni upon the penalties adjudged against the sheriff for his nonpayment of the sums due January 1st of each of the years in suit, as to the railroad taxes, and like interest upon the penalty adjudged upon the county levy for the year 1901. The penalty of 6 per cent, against the sheriff is not a debt, though it is a liability covered by the bond. The statute does not make it bear interest, and the general rule is that statutory penalties do not bear interest.

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 expiration Of his term of office, and probably after he had left the State, the fiscal court appointed commissioners (Clark and Milliken) to make settlement with the sheriff for all the years of his term. They proceeded to do so, ignoring all the previous settlements. They charged the sheriff with all' the penalties and interest herein discussed, calculating the interest to the date of their report, which was the 1st day of June, 1902. The court corrected the report as indicated above as to the years 1898, 1899, and 1900, as well as allowed the credit for 1901, discussed below, but in other respects adopted the report as the basis of the judgment; bringing the whole indebtedness, including that for railroad taxes collected1, and hereinafter discussed, down to that date— June 1, 1902. Interest at 6 per cent, per annum on this total sum was then calculated to the date of the judgment, 23d February, 1901, and judgment entered for that gross sum, and interest from the last-named date till paid. We are of opinion this was error. Not only was it improper to adjudge interest upon the penalties against the sheriff for nonpayment of what he owed, but it was not proper to compound interest. The Clark and Milliken settlement was made after the sheriff left the State, or, at any rate, after his term of office expired, and after the time fixed in the statute. This attempted and ex parte settlement was no more than a carefully prepared estimate by capable accountants of what they deemed to be due the county by the sheriff. It was not a settlement as contemplated by the statute, where both sides were represented, in an effort to arrive at the true amount of the indebtedness. It can not, though filed in the county clerk’s office and recorded, be treated as a confirmed settlement made under the statute. The sheriff, not being a party ot it, can not be cut off without “his day in court,” from presenting his side of the account. Commonwealth v. Moren, 78 S. W., 432, 25 Ky. Law Rep., 1635. The circuit court took this view of the Clark and Milliken settlement.

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 all. Nor did lie ever settle bis accounts for those taxes with the sinking fund commissioners, nor were commissioners appointed for that purpose by the fiscal court. He made no settlement whatever of his railroad tax with the fiscal court. If he settled with the treasurer of the sinking fund, such settlement is not produced or accounted for, though various settlements of the treasurer’s accounts made annually, stating that he had received so much from the sheriff on account of taxes collected by him, and indicating some sort of settlement or accounting between him and the sheriff by which the amount due by the sheriff for such years was arrived at, are shown in the record. It is the contention of appellant that these treasurer’s settlements — of his own accounts, not the sheriff’s — when received by the fiscal court and ordered to record, were conclusive against the county of the state of the sheriff’s accounts for each of the years for the railroad taxes collected or collectible by him. The treasurer of the sinking fund did not charge the sheriff with any penalties or interest in his so-called settlements. These alleged settlements between the treasurer of the sinking fund and the sheriff are not binding upon the county, nor conclusive, in any sense, of the state of the sheriff’s accounts'. In the first place, there was no authority, statutory or otherwise, for the treasurer of the sinking fund to make such settlements. If the commissioners were authorized to do so, they did not. In the next place, the treasurer’s settlement of his own accounts, which was confirmed by the county court and approved by the fiscal court, merely recited what sums he had received from the sheriff. The further statement that the sheriff owed so much, and no more in addition, was wholly outside of the scope of the treasurer’s own accounts, and formed no part of his settlement. The confirmation of the report on this point meant no more than, that the treasurer had received only Hie sums charged against him. in the settlement as having been paid by the sheriff.

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, contains what might seem to be a prohibition against the levying of taxes to pay off railroad bonded indebtedness and interest, yet it must be read in connection with section 1839, which does authorize the levying of taxes 'to pay off all debts existing prior to September 28, 1891 — the date of the adoption of the new Constitution. Section 1882 was adopted first, by several months, though both it and section 1839 were adopted by the same Legislature. Section 1882 limits the imposition of a tax to not more than fifty cents on the $100, and $1.50 poll, for county purposes. No part of this tax, it seems, was intended to be applied to the payment of railroad bonded debts and interest. But section 1839 permits, as does section 157 of the Constitution, the levy of an additional sum for the purpose of discharging all debts incurred prior to September 28, 1S91. Section 1884, Kentucky Statutes, 1903, makes the sheriff the collecting officer of all county taxes, if he execute bond therefor. It fixes his compensation, though it increases it as compared to that allowed by the special act of 1880. Section 1885, Kentucky Statutes, 1903, applies to the collection of county taxes the same penalties for nonpayment, both as to the taxpayer and the collecting officer, as pertain to State taxes. It also makes county taxes due at the same time as State taxes. The local act of 1886 had different provisions on these subjects. The taxes were due at different periods and the penalties were not the same for their nonpayment, so far as the act applied to the collecting officer. We think the Kentucky Statutes were intended to cover all these matters, and to do away with the irregular and special proceedings previously existing. One of the most prominent features of the new Constitution is its effort to establish a uniformity of tlie law throughout the State. One of the main abuses that brought the convention into being was the great confusion arising from the mass of special and local statutes which had been passed under the old Constitution. This manifest purpose should be given full effect in the construction of laws passed to carry it into force.

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 commissioners is superseded by sections 1884, 4146, Kentucky Statutes, 1903, making it is liis duty to settle once each year, at the October term of the fiscal court, and as often as that court may require. By section 1884, Kentucky Statutes, 1903, the sheriff is required to pay over all taxes and penalties collected by him “in due time to the proper party as directed by the court.” Where there is a county treasurer, this must be done every sixty days, without demand. Section 932, Kentucky Statutes, 1903. By section 4147 the sheriff is required to .pay a penalty of 6 per ceDt. on taxes -collected or collectible, which “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.” In this case it appears that the sheriff’s bond required him to pay over the money collected by him as stipulated in the special act of May, 18S6 (1 Acts 1885-86, p. 183, c. 1233), which was a sufficient designation by the fiscal court, so far as the sheriff and his surety are concerned, of the person to whom to pay it. The annual election of a sinking fund commissioner of railroad taxes is also shown. The treasurer of the sinking fund says he demanded of the sheriff the payment of the taxes. There being a person designated by the county to receive the money for it from the sheriff, it was his duty, under the statute, to pay it over on demand after it was due. By his failure to do so, he has incurred the penalty fixed by the statute. The sheriff’s duty to pay over the taxes collected by him is not in abeyance till he has settled. The settlement might precede or follow the payment.

■ 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 principies, it is competent to reduce them to a single sum, and to render judgment for that sum, which will bear interest from the date of the judgment. Section 2220, Kentucky Statutes, 1903. For then penalties and interest already accrued are merged, as is the principal adjudged, into the judgment for money, which must bear interest.

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.