Commonwealth v. Cook, &C.

• Citation: 71 Ky. 220
• Court: Court of Appeals of Kentucky
• Decision Date: 13 September 1871
• Parties: Commonwealth v. Cook, &c.

71 Ky. 220

Commonwealth v. Cook, &c.

Court of Appeals of Kentucky.

September 13, 1871.

APPEAL FROM TRIMBLE CIRCUIT COURT.

JOHN RODMAN, Attorney-General, For Appellant.

GEORGE C. DRANE, For Appellees.

JUDGE LINDSAY DELIVERED THE OPINION OF THE COURT.

At the February term, 1868, of the Franklin Circuit Court, upon a proceeding by motion, the commonwealth recovered a judgment against James B. Cook, sheriff of Trimble County, and the sureties on the bond executed by him, for the collection of the state revenue due from the tax-payers of that county for the year 1867, for the sum of $4,004.41, with interest, and also a further judgment for twenty per centum damages, as allowed by law in such cases. An execution was sued out on this judgment on the 5th of November, 1868, and placed in the hands of the sheriff of Henry County for collection; and a levy having been made upon the lands of Cook's sureties, they instituted this suit to enjoin further proceedings under the execution, basing their right to the relief sought upon these two grounds:

First, that Cook, their principal, failed to execute his official bond as sheriff, and to take the oath of office within a month after the time his election ought to have taken effect, as required by section 12, chapter 71, of the Revised Statutes; and that by reason of such failure he vacated his office, and rendered himself ineligible thereto for two years next thereafter, and hence that the County Court of Trimble County had no power to permit him to qualify as sheriff at the time he was permitted so to do; and they insist that in consequence of Cook's failure to qualify within the prescribed time, and the want of power upon the part of the county court at the time it attempted to induct him into office, all its orders on the subject, as well as the bonds executed by Cook to the commonwealth, are absolutely void, and as a logical and necessary sequence that the judgment rendered against them upon one of these bonds, without the service of process, is also void.

The second ground is that the lands taken under the execution are exempt from levy and sale under the provisions of an act of the General Assembly, approved February 10, 1866, and generally known as the "Homestead Law."

The attorney-general demurred specially to each paragraph of the petition. His demurrer was sustained as to the first and overruled as to the second paragraph. The appellees failing to amend, judgment was rendered in conformity with the principles indicated by the court in its action upon the demurrers. From this judgment the commonwealth has appealed, and the sureties have prosecuted a cross-appeal.

The petition alleges that Cook's election as sheriff ought to have gone into effect on the first Monday in January, 1867, and that he did not qualify and execute his official bond until the 11th of February, more than one month thereafter. It does not state that he was elected at the regular August election, 1866; nor does it mention the date of his election at all; nor is there any light thrown upon this question by the order of the county court, made an exhibit by the petition. This order merely recites that on the 11th of February, 1867, "James B. Cook produced his certificate of election as sheriff of Trimble County, and moved the court to permit him to enter into bond and qualify as such." No such state of facts is set out by the petition as will necessarily imply that he was elected at such time as rendered it necessary that he should execute his bond, and take the oath of office as early as the first Monday in January, 1867. The petition does allege that his election ought to have gone into effect on that day; but this is a legal conclusion upon the part of the pleader, and not a statement of the facts upon which such conclusion is based. And in the absence of such statements we have no means of determining as to its correctness. We will not assume that the county court permitted Cook to qualify as sheriff after he had forfeited his right to the office, and rendered himself ineligible thereto. Construing the petition more strongly against the pleader, and indulging the presumption that the county court, in a matter over which it had undoubted jurisdiction, conformed substantially to the statutes regulating such proceedings, we conclude that the court below did not err in sustaining the demurrer to the first paragraph of the petition. This conclusion renders it unnecessary to inquire into the other questions presented by the appellees on this branch of the case, as they are all based upon the idea that Cook had forfeited his right to the office of sheriff at the time he was permitted to qualify.

The question raised by the demurrer to the second paragraph of the petition is one upon which there has been no adjudication by this court, and we confess that we have been unable to find a decision by any English or American court upon a proposition exactly analogous. If the contract or undertaking upon which the judgment was rendered had been executed to any individual or private corporation, there could be no doubt entertained but that a court of equity would interfere to prevent the sale in satisfaction of such judgment of property exempt from levy and sale under the provisions of the "homestead law." But in this case the undertaking is to the commonwealth, and to secure the payment of the public revenues. As the government of the state is established for the good of the whole, and can only be supported by means of its revenues, courts in the construction of general laws will not ordinarily apply to the state such as upon their face seem to have been intended only for declaring or regulating the rights and remedies of private individuals, and which, if so applied,...