Johnson v. Logan County

64 S.W. 634, 111 Ky. 698, 1901 Ky. LEXIS 244

Opinion

Opinion of the court by

JUDGE HOBSON

Affirming.

The fiscal court of Logan county, on April 3, 1894, levied a tax to meet the interest and create a sinking fund for the bonds' issued by the county in payment of' its subscription to the Owensboro & Russellville Railroad. W. T. Price, the sheriff of the county, undertook the collection of the tax, and, having failed to pay over the money, this suit was filed against him and his sureties on the bond given by him pursuant to the act under which the tax was levied. The sureties defended the action on the ground that the bond was not taken by the county court within .the time fixed' by the statute, and that it was not warranted by the power of attorney under which their names were placed to it. The court below adjudged their defense bad, and they have appealed.

The statute required the bond to be executed within fifteen days after the levy was made. The bond was not executed until November 27, 1894,.or nearly seven months after the levy was made. The question presented is, did this invalidate the bond? The provision of the statute under w'hich the ’bond was given is as follows (1 Acts 1885-86, p. 1214, sec. 2): “Sec. 2. That all taxes levied under the authority of this act shall be collected by, or paid to, the sheriff of Logan county, who shall receive for his services therefor a commission of four and one-half (4%) per cent, upon the amounts collected. Before entering upon the duty of collecting said tax, the sheriff shall execute a bond to said county, with good and sufficient sureties, to be approved by the judge of the Logan county court, 'conditioned that he will faithfully, and within the time prescribed by this act, collect and pay over to the proper person the levy placed in his hands for collection.- Said bond shall be executed within fifteen days after the levy of said tax by the county court, and upon his failure to execute same within the time mentioned, it shall be the duty of the county court composed of the judge and a majority of the magistrates in commission, to elect a suitable person to collect said tax, who, when elected shall execute bond in the manner hereinbefore prescribed, and within fifteen days after his election, and shall have the same powers and be under the same responsibilities as the sheriff in respect to the collection of the State revenue. If said collector shall fail to execute the bond as hereinbe'fore stipulated, said court shall forthwith elect another, and so on until a collector shall be procured to collect said tax.” The design of the statute in requiring the bond to be given within fifteen days, and in making it the duty of the county court, if the bond was not given within that time, to appoint a collector, and, if he did not execute bond as required, to appoint another, was to secure the prompt collection of the tax for the payment of the debt. But, while it was the duty of the court to appoint a collector if the sheriff failed to execute the bond in proper time they might appoint the sheriff collector, and when it accomplished the same purpose to take the bond from him as sheriff, the essential demand of the statute was satisfied. “Statutory prescriptions in regard to time for, and mode of, proceeding by public functionaries are generally directory; as they are not of the essence of the thing to be done, but are given simply with a view to secure system, uniformity, and dispatch in the conduct of public business.” 23 Am. & Eng. Ency. Law, 458. The substance of the thing to be done upon which the rights of the public depend is the giving of the bond, not the precise time or manner in which it is given. The time, as far as the validity of the bond is concerned, is merely directory, when the statute does not negative its validity if given later. Schuff v. Pflanz, 99 Ky., 97 (18 R., 25), (35 S. W., 132); City of Chicago v. Cage, 95 Ill., 593, 35 Am. Rep., 182; Duntley v. Davis, 42 Hun. 229; State ex rel. Attorney General v. Churchil, 41 Mo., 41. The cases of Calloway v. Com., 67 Ky., 383; Hall v. Com., 71 Ky., 378; Com. v. Yarbrough, 84 Ky., 496 (8 R. 483), 2 S. W., 68,—relied on for appellants, were decided under statutory provisions making the bond invalid if not taken at the required ■ time. We conclude, therefore, that the county court had power, there being nothing in the act inhibiting it, to take the bond from the sheriff after the expiration of the fifteen days.

It remains to consider whether the bond was warranted by the power of attorney under which appellants’ names were signed to it. The power of attorney and the bond in question are in these words: “Whereas, W. T. Price, sheriff of Logan county, Ky., is required by law to execute a bond on or before the first Monday of January, 1894, for the faithful performance of all his duties as sheriff aforesaid, for the year 1894, and as sheriff will be required to execute a bond for the collection of the Owensboro & Russellville Railroad tax of Logan county for the year 1894, to pay the interest on the bonds of Logan county issued in aid of the construction of the Owensboro & Russellville Railroad in Logan county, and to create a sinking fund, when the county court of Logan county shall have levied said tax for the year 1894: Now, we whose names are subscribed hereto do hereby nominate, constitute, and appoint H. L. Evans as our agent and attorney in fact, for us and in our stead, to sign our names as sureties to each of said bonds, at such time or times as said bonds may be executed as required by law, and the acts of our agent and attorney in fact hereunder shall be as binding on us and each of us as if done by us in our own proper person, it being our purpose to become the sureties of said W. T. Price on both his sheriff’s bond and his Owens boro & Russellville Railroad collector’s bond, each for the year 1894; and, it further appearing that said Price will be required to execute an official bond as heretofore, we do hereby authorize our said attorney in fact to sign our names as sureties to said bond also hereby ratifying whatever he may do hereunder as our agent and attorney in fact. Witness our hands, this 23d day of December, 1893.” “Whereas, W. T. Price, sheriff of Logan county, is authorized by law to collect the tax levied by the Logan county court at the April term, 1894, to pay accrued and accruing interest on the bonds of Logan county issued in aid of the construction of the Owensboro & Russellville Railroad, and create a sinking fund: Now, we, W. T. Price, sheriff, as principal, and Vernon Price, T. A. Linton, C. P. Johnson, A. McCarley A. E. Griffith, J. H. Price, Joseph Rogers, H. R. Wilson, T. E. Hall, J. W. Linton, and J. S. Hughes, his sureties, do hereby covenant to and with said Logan county, and hereby agree and bind ourselves, our heirs and assigns, that the said W. T. Price will faithfully, within the time prescribed by law and the provision's embraced in an act of the Genéral Assembly of the State of Kentucky, approved April 6, 1886, and designated as chapter 532, and amendments thereto approved May 18, 1886, and designated as chapters 1285 and 532, collect and pay over to the proper person the levy placed in his hands for collection, as levied by the county court aforesaid, and for the year 1894. And we hereby covenant and bind ourselves that the said Price, as sheriff and collector aforesaid, will faithfully discharge his duties in regard to the reports and payments prescribed by the act and the amendments thereto recited, and will in all things else conform to the requirements of law as 'collector aforesaid. (Note. The act referred to was approved April 7, not April 6, 1886.) Witness our signatures this, the 27th day of November, 1894.” It will be seen that the power of attorney was given on December 23, 1893, in anticipation that. a levy would be made to pay the interest on the! railroad bonds and create a sinking fund. The attorney in fact was authorized to sign appellants’ names as sureties to the bond at such time or times as the. bond might be executed as required by law. To leave no room for doubt, it is added that it is their purpose to become the sureties of Price on both his sheriff’s bond and the railroad-tax bond for the year 1894. The law required the bond for the railroad tax to be executed, and the power of attorney empowered the attorney in fact to sign appellants’ names to the bond at such time or times as it might lawfully be executed. If the bond' was hot given at the proper time, and the county court still had authority to take it, the bond, though given after the time fixed by the statute, was taken at a time when it might “be executed as required by law.” The substance of the power of attorney, is that it was appellants’ purpose' to ■become the sureties of Price on this bond, and that Evans, as their attorney in fact, was authorized to sign their names to it when the sheriff might lawfully give it. As the county court had authority to take the- bond after the expiration of the 15 days within which it should properly have been executed, the bond was executed as required by law, and the appellants are bound thereon.

The other questions discussed by counsel have not been finally passed on by the trial court, and are therefore not before us on this appeal.

Judgment affirmed.