Commonwealth v. Masonic Temple Co. , 89 Ky. 658 ( 1890 )

CHIEF JUSTICE LEWIS

delivered the opinion op the court.

In 1885 appellee brought an action against J. D. Barbour, sheriff of Jefferson county, to enjoin collection by him of certain taxes assessed on a lot of land in the city of Louisville for the years 1862 to 1885, inclusive, and obtained judgment perpetuating that injunction; but upon appeal to this court the judgment was reversed, with directions for dissolution of the injunction and dismissal of the action. In January, 1889, appellee brought the present action against William Clark, successor in office of Barbour, to enjoin collection by him of the identical taxes, and the judgment now appealed from is, in effect, the same as the other.

It appears that Barbour’s term of office expired, and lie - obtained from the Auditor of Public Accounts a quietus for each of the years, 1885, 1886, before the first injunction obtained was dissolved, or his right to collect the taxes in question was restored. The ground upon which the judgment appealed from was rendered is, that Barbour only could be legally made chargeable with the taxes in question, because assessed and listed during his term of office; that the Auditor was not empowered to give to him a quietus while they were outstanding, and as Clark was not nor could be made liable on his bond for the collection of them, he had no authority to collect. Section 8, article 8, chapter 92, General Statutes, former edition, requires the sheriff, on or before the first Monday in January of each year, to enter into bond, with surety, for collection of the revenue and dues, and the bond contains a stipulation, in substance, that he shall, by himself or deputies, during that year, “collect, accomxb for and pay into the Treasury of the State, and to other persons entitled thereto, according to law, dll taxes and public dues; also all fines, amercements and penalties directed or authorized ,by law to be collected or received by him in the year within the county,” &c. By section 8 the sheriff is required to account for and pay all taxes for which he is bound, into the State Treasury by the first of April in each year, and upon *his failure to do so, he and his sureties shall be liable therefor, and shall be proceeded against at the first term of the Franklin Circuit Court. Moreover, by section 8 it is provided the Commonwealth shall have a lien upon the real estate of the sheriff, which shall not be discharged until a quietus is obtained for all the revenue and public dues he was bound to collect.

Although the taxes in question were listed with Barbour in 1885, and he became chargeable with the collection of them, he was unquestionably entitled, in .his annual settlement with the Auditor, to a credit by the amount, and to the quietus given to him for each of the years, 1885, 1886, notwithstanding no part of them had been collected; for it would be not only extremely oppressive, but contrary to a rational construction of the statutes, to make a collector of revenue liable to an action by the Commonwealth, at the same time continuing the lien on his property indefinitely, for a failure to collect taxes which he could not even attempt to collect without subjecting himself to penalties for disobeying an injunction; and it seems to us he, in the meaning of the statute, sufficiently accounted for said taxes, and, therefore, had the right to demand, and it was the duty of the Auditor to give him, a quietus, as though he had actually collected and paid the amount into the Treasury. As, then, the quietus for 1885, 1886, was regularly and legally given to Barbour, the effect of which was to release him from the covenant to collect the taxes from appellee, his authority to collect them ceased; for manifestly the duty and authority of a collector of revenue are to be always treated as correlative; and it thus follows, if Clark, his successor in office, has no right or authority to collect, there is, under the statutes as now existing, no person by whom or proceeding by which they can be collected, and appellee becomes released altogether from payment of what it has been decided to justly owe the Commonwealth; for clearly the chancellor has no right, as argued by counsel, to require appellee to pay the amount, or any part of it, into court, because the basis of the relief prayed for in its petition is the total lack of right or authority of Clark, sole defendant to the action, to collect or receive the taxes.

It is not to be assumed the Legislature intended to remit altogether taxes, the collection of which may be stayed by a suit of the tax-payer during the term ■of the sheriff originally made chargeable; nor is there a necessity for perverting the meaning or straining the construction of the statutes as they exist, in order to impose liability on, and give to the present sheriff authority, to collect taxes from appellee. The power to colléct the revenue and dues is, in general terms, given to each sheriff, who, in virtue of his office, becomes collector, and, consequently, must be regarded as existing in every state of case when it is not expressly provided otherwise. It is true the sheriff is required to give bond, with security, for the faithful performance of his duty as collector, to which the Commonwealth can look for redress in case of defalcation ; but taxes are, nevertheless, due -to it; and when one sheriff has been deprived of the power to collect, during his term of office, by process of court issued at the suit of a tax-payer, it would be absurd to say that the effect of a final judgment against such plaintiff is to afford the identical relief thereby denied. Each sheriff covenants in his bond as collector that he shall, during the fiscal year in which it is given, collect, account for and pay into the Treasury of the State, .or other persons entitled thereto, ac-' cording to law, not merely such as have been ascertained or assessed and listed with him for that year,' but all taxes, and public dues, without regard to the time when they first became subject to collection. That language, it seems to us, properly and fully applies to and comprehends taxes which, as in this case,were not collected by a former sheriff, because he was enjoined from collecting, and can not be so confined as to exclude them without perverting its obvious meaning and defeating the intention of the Legislature.

This court, it is true, has heretofore held, ' that1 when one sheriff has failed, by his own negligence, to collect certain taxes it was his duty to «.collect, he ean not compel his successor in office to collect thém for him, because, having been accounted for and paid into the Treasury, the Commonwealth has no longer any interest in them, but they h aye . become individua] demands of the sheriff' himself; and for relief in such cases the Legislature has; by acts, eixténded the period beyond the term of office in which such, .taxes may be collected by the officer entitled to them. Such was the ruling in Middleton v. Caldwell, 4 Bush, 392, and Jones v. Gibson, 82 Ky., 561, cited by counsel; but neither of them has application to the question before us.

.. In our opinion, the taxes due from appellee were legally placed in the hands of Clark for collection; he became responsible for their collection, and the judgment in this case is, therefore, reversed, with directions to dissolve the injunction and dismiss the action.