Buchanan Sheriff v. West Ky. Coal Co.

• Decision Date: 11 February 1927
• Citation: 218 Ky. 259
• Court: United States State Supreme Court — District of Kentucky
• Parties: Jess Buchanan, Sheriff, &c., et al. v. West Kentucky Coal Company. Same v. Madison Coal Corporation.

218 Ky. 259

Jess Buchanan, Sheriff, &c., et al. v. West Kentucky Coal Company.

Same v. Madison Coal Corporation.

Court of Appeals of Kentucky.

Decided February 11, 1927.

1. Mandamus — On Mandamus to Require Sheriff to Give Receipt for Discounted Taxes, it was no Defense that Sheriff had Not Received Tax Bills (Ky. Stats., Sections 4067, 4239(a), and Section

4148, as Amended by Acts 1926, c. 175). — Sheriff was required to accept taxes tendered before September 1st with 2 per cent. discount and give receipt in full, under Acts 1926, c. 175, amending Ky. Stats., section 4148, though tax bills had not been furnished in accordance with section 4239(a), where no showing was made that sheriff had not received copy of assessor's books or certified list, under section 4067.

2. Taxation — Statute Allowing 2 per cent. Discount on Taxes Paid Before Specified Time Held Not Unconstitutional (Ky Stats., Section 4148, as Amended by Acts 1926, c. 175). — In suit to require sheriff to give receipt for taxes tendered, with 2 per cent. discount, Ky. Stats., section 4148, as amended by Acts 1926, c. 175, allowing 2 per cent. discount on taxes paid on or before September 1st after due, held not unconstitutional as beyond legislative powers, as Legislature could authorizze rebate to induce prompt payment of taxes.

3. Taxation — Any Error of Tax Commissioner in Assessing Fixtures as Personal Property Held Not Clerical, Which County Court had Jurisdiction to Correct — "Clerical Error" (Ky. Stats., Section 4250). — County court had no jurisdiction to correct assessment of tax commissioner by transferring fixtures listed as personalty to real property class, under Ky. Stats., section 4250, giving county courts authority to correct any mere clerical errors in assessment, as any error in listing fixtures as personal property involved exercise of judicial function and was not "clerical error."

4. Courts — "Clerical Error" Appearing from Face of Record May be Corrected on Application Within Reasonable Time. — Clerical error committed by court, appearing from face of record, may be corrected by appropriate application within reasonable time after adjournment of term of court in which committed; "clerical error" being inadvertence or oversight discoverable by inspection, as distinguished from error which is result of exercise of judicial function.

Appeals from Union Circuit Court.

FRANK E. DAUGHERTY, Attorney General, CHAS. F. CREAL, Assistant Attorney General, L.C. FLOURNOY, JR., and E.R. MORTON for appellants.

W.T. HARRIS and P.H. WINSTON for appellees.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming on both the original and cross appeals.

By chapter 175, page 835, Session Acts of 1926, the legislature amended and re-enacted designated sections of the Kentucky Statutes, one of which was section 4148, relating to the time when certain taxes are due and payable: when they become distrainable, and providing for penalties for failure to make payment within the designated time. The amended section contained a proviso reading: "Providing any taxpayer who pays his or her or its state, county or district taxes on or before September 1, after same becomes due in any year shall be entitled to 2% discount thereon, and the collector, in case of all such payments, will allow such reduction and give a receipt in full to the taxpayer." The appellees and plaintiffs below, West Kentucky Coal Company and Madison Coal Corporation, are corporations operating coal mines in Union county. They each applied to the sheriff of that county before September 1, 1926, and tendered to him their respective taxes less 2%, which he declined to accept, and these two actions were instituted against him in the Union circuit court seeking a mandatory order compelling him to do so.

By an amendment plaintiffs averred that after the tax commissioner had assessed their property they discovered that he had mistakenly listed certain articles as personal property when they were fixtures attached to the realty and should have been classified and listed as real estate, upon which the rate of taxation was 30 cents on each $100.00 valuation; whereas personal property bore a rate of 50 cents on the same valuation. They further alleged that after making that discovery they applied to the county court of Union county in the manner provided by section 4250 of the statutes, and it, after a hearing, transferred such wrongfully or mistakenly listed articles from the class of personal property to that of real property, and such finding was certified by the county court as provided in that section. Plaintiff, therefore, prayed that defendant be ordered to collect taxes from them only on the total valuation as so corrected by the county court, less 2%.

The sheriff, and the county, and the State Tax Commissioners, who had intervened, demurred to the petitions as amended, and the court overruled them as to the original petitions, seeking a discount of 2%, but sustained them to the amendments seeking credit by the corrections made by the county court, upon the ground that the wrongful classification of the assessed property by the tax commissioner, if any, was not a "clerical error," and, therefore, the county court had no jurisdiction under the provisions of section 4250 to make the corrections. Appellants appealed from those judgments and filed complete transcripts in this court, and defendants moved for and obtained a cross-appeal in which they complain of the court's ruling in sustaining a demurrer to their amended petitions. The case was tried upon an agreed statement of facts, one of which was: "It is admitted by all parties that on September 1, 1926, the tax bills for Union county had not come to the hands of the appellant, Jess Buchanan, sheriff of Union county, said bills not having been made out and completed by the clerk of the county as provided by law, and that before that date a tender of the amount of the tax bill was made to said sheriff by the appellees, West Kentucky Coal Company and Madison Coal Corporation, and which tender was refused by said appellant." (Our italics.)

Counsel for appellants seriously contend that under the agreed facts the court erred in adjudging plaintiffs entitled to the 2% discount, because of the provisions of section 4067 of the 1922 edition of the statutes, saying: "No sheriff shall receive or receipt for any taxes until a copy of the assessor's books, as approved by the board of supervisors, has been delivered to him by the county clerk, or the list filed in the county clerk's office has been certified to him by the said clerk. For a violation of this section the sheriff shall be fined one hundred dollars ($100.00) for each offense." (Our italics) Their argument is that under the inserted agreed facts appellant, as sheriff, was forbidden by the last quoted section to accept the taxes tendered to him when made, and that it was not only illegal for him to do so, but if done subjected him to a fine of $100.00 in each case. The contention, it will be observed (conceding that 4067 is applicable to the agreed fact) is upon the theory that the neglect of the proper officials to perform their duties will operate to deprive a taxpayer of the benefits to which he is entitled under express statutory provisions as a payer of taxes, but the correctness of which theory we seriously doubt. We, however, are not called upon under the agreed stipulation to determine the intricate and difficult question which that theory would present. It will be observed that section 4067 only inhibits the sheriff from receiving any taxes "until a copy of the assessor's books, as approved by the board of supervisors, has been delivered to him by the county clerk," or until the latter officer has furnished him with a copy of the filed list in his office. The purpose of that section was to prevent the collecting officer from attempting to collect taxes until the amount thereof was properly certified to him. The agreement in the stipulation supra, does not pretend to say that the sheriff at the time the taxes herein were tendered to him by plaintiffs did not have in his office the assessor's books, or a certified list from the county clerk's office. It only stipulates that the tax bills and stubs, which the county court clerk is required to prepare and furnish by section 4239a of the 1922 edition of the statutes, had not been delivered to him, nor were they in his office at the time of the tender.

Such tax bills and stubs form no part of the assessor's books or the correct list of taxable property of the taxpayer as contemplated by section 4067. Such bills and stubs are in reality nothing but a copy of the tax books containing, on a separate sheet, the property assessed to each taxpayer and the amount of his taxes, with a receipt thereon to be signed by the sheriff, and perforated leaf to be detached by him and delivered to the taxpayer as a receipt when he pays his taxes. They also contain a stub which remains in the book which the sheriff is required to fill...