Carl v. Thiel

Decision Date20 November 1925
Citation211 Ky. 328,277 S.W. 485
PartiesCARL v. THIEL, SHERIFF.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Kenton County.

Injunction suit by Joseph Carl against P. P. Thiel, as sheriff. From a judgment of dismissal, plaintiff appeals. Reversed, with directions to set aside judgment and to enter one perpetually enjoining defendant, as prayed for in petition.

Richard T. Von Hoene, of Covington, for appellant.

O. M Rogers, of Covington, for appellee.

THOMAS J.

As a citizen and taxpayer of Kenton county, the appellant and plaintiff below, Joseph Carl, brought this equity action in the Kenton circuit court to enjoin appellee and defendant below, who is the sheriff of the county, from proceeding to distrain personal property or to levy upon and sell real property in the enforcement of the collection of the state and county taxes during the month of December, 1925, and from declaring taxes uncollected by December 1st delinquent, and from collecting either interest or penalties on such taxes at any time during that month, all upon the ground that defendant, as sheriff of the county, and whose duty it is to collect such taxes, was threatening to and would proceed in the manner indicated, unless enjoined by the court, and that such threatened action on his part would be contrary to chapter 108, page 312, of the Session's Acts of 1924 wherein it is provided that state and county taxes due and collectable in the year 1925 should not become delinquent until after December 31st of that year instead of December 1st under the law as it existed at the time of the enactment of that chapter.

A demurrer filed by defendant to the petition was not acted on and he filed his answer, in which he alleged that the 1924 act was unconstitutional and void, especially as to him during his incumbency in office, because, according to his past experience, he would be deprived of enforcing the collection of about $8,000 of delinquent taxes before his term of office expired, and upon which he would receive fees and commissions amounting to about $500, and that the effect of the 1924 act would be to reduce his compensation after he had been elected to and installed in office contrary to the provisions of sections 161 and 235 of our Constitution. It was furthermore alleged and insisted on that under the provisions of section 4239a of Carroll's 1922 Kentucky Statutes the sheriff and his surety become responsible for the total of all tax bills, books, and stubs for which he is required to receipt the county court clerk by the terms of that section, and that, if the 1924 act is to be enforced during his term so as to deprive him from proceeding to declare any of the unpaid taxes delinquent, from and after which only he may proceed to enforce their collection with interest and penalties, then it would have the effect to impose a liability on him and his sureties without an opportunity for him to relieve himself against it. A demurrer filed to the answer was overruled, and, plaintiff declining to plead further, his petition was dismissed, to reverse which he prosecutes this appeal.

Before addressing ourselves to the question as to whether the 1924 act contravenes the provisions of either of the two sections of the Constitution referred to, as applicable to defendant, we deem it proper to say that his pleading was not sufficient to entitle him to rely on that objection to the validity of the act, since he nowhere alleged that the aggregate of all salary, fees, and commissions of his office for the year 1925, up to the time of filing his answer, or to December 1st, aggregated less than his constitutional salary of $5,000 and reasonable compensation for his necessary deputies, so as to show that the additional $500 of which he claims to be deprived through the operation of the 1924 act would be necessary in order to enable him to collect from the emoluments of his office the maximum constitutional sum of $5,000 for himself and reasonable compensation for his deputies. It requires no argument to show that defendant would not be affected by the provisions of the act he attacks, unless he was entitled to retain the extra $500 of which he claims to be deprived because of its provisions. Shipp v. Bradley, 196 Ky. 523, 245 S.W. 157, and 210 Ky. 51, 275 S.W. 1.

Independently, however, of that proposition we think there is no merit in the point advanced and now under consideration. Learned counsel for appellee relies on the cases of Bright v. Stone, 43 S.W. 207, 20 Ky. Law Rep. 817; Thomas v. Hager, 120 Ky. 428, 86 S.W. 969, 27 Ky. Law Rep. 813; Slayton v. Rogers, 128 Ky. 106, 107 S.W. 696, 32 Ky. Law Rep. 897; Bosworth v. Ellison, 148 Ky. 708, 147 S.W. 400; Anderson v. Burton, 174 Ky. 459, 192 S.W. 519, and Brown v. Laurel County Fiscal Court, 175 Ky. 747, 194 S.W. 907. He could have more than sextupled that list, as will be seen from the notes to the two sections of the Constitution referred to in the 1922 edition of our Statutes, but counsel's trouble lies, not in the fact of the unsoundness of the cases to which he did or could have referred, but in the fact that the doctrine announced in all of them does not fit the facts of this case. In some of them a fixed salary of the officer at the time he was inducted into office was attempted to be changed during his term of office either by being decreased or increased, and we held that such an effort plainly contravened the constitutional provisions and did not apply to the current term of any officer who had become such before the attempted increase or decrease. All the others of those cases were where the scale of fees or commissions for specified services were attempted to be altered or changed during the term of the officer to which they applied and after he had taken office, which plainly contravene section 161 of the Constitution, while section 235 is more applicable to fixed salaries, but we have neither of such cases here. The statute does not pretend to alter or change in any manner the scale of defendant's commissions for the collection of state or county taxes in his county, and the only possible and remote effect that the statute could have on the aggregate of defendant's fees and commissions for collecting any part of the taxes due in 1925 is the probability that some of the taxpayers of Kenton county will suffer themselves to become delinquent so as to incur the statutory interests and penalties, and which is alleged in the petition to aggregate as much as $8,000, which necessarily is only based on the opinion of defendant. However, if that opinion was an absolutely demonstrated fact, it would still invade no constitutional right of defendant, since, as long as there is no change in his fixed salary, nor any change in the scale of his fees or commissions, he has no right of complaint, although the statute which he attacks may have the possible effect to reduce the services to be performed by him or diminish the aggregate amount upon which he is entitled to receive his fixed fees and commissions.

In the case of Purnell v. Mann, 105 Ky. 87, 48 S.W. 407, 20 Ky. Law Rep. 1396, it was argued that what was then known as the Goebel Election Law (Acts...

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15 cases
  • Sanders, Chief Clerk, Etc., v. Talbott, Auditor
    • United States
    • United States State Supreme Court — District of Kentucky
    • 15 Junio 1934
    ... ... Rodes, 196 Ky. 523, 245 S.W. 157; Shipp v. Bradley, 210 Ky. 51, 275 S.W. 1; Com. v. Nunnelley, 211 Ky. 409, 277 S.W. 506; Carl v. Thiel, 211 Ky. 328, 277 S.W. 485; Davis v. Walker, 212 Ky. 379, 279 S.W. 654; Holland v. Fayette County, 240 Ky. 37, 41 S.W. (2d) 651; Taylor v ... ...
  • Sanders v. Talbott
    • United States
    • Kentucky Court of Appeals
    • 15 Junio 1934
    ... ... Rodes, 196 Ky. 523, 245 ... S.W. 157; Shipp v. Bradley, 210 Ky. 51, 275 S.W. 1; ... Com. v. Nunnelley, 211 Ky. 409, 277 S.W. 506; ... Carl v. Thiel, 211 Ky. 328, 277 S.W. 485; Davis ... v. Walker, 212 Ky. 379, 279 S.W. 654; Holland v ... Fayette County, 240 Ky. 37, 41 S.W.2d 651; ... ...
  • Holt, Drainage Com'R v. Clements, County Judge
    • United States
    • United States State Supreme Court — District of Kentucky
    • 13 Octubre 1936
    ... ... Tincher v. Commonwealth, 208 Ky. 661, 271 S.W. 1066; Carl v. Thiel, 211 Ky. 328, 277 S. W. 485; Shadoan v. Barnett, 217 Ky. 205, 289 S.W. 204, 49 A.L.R. 843; Cumberland Pipe Line Co. v. Commonwealth, 228 Ky ... ...
  • Commonwealth v. Coleman, Co. Atty.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 4 Noviembre 1932
    ... ... We have followed that ruling in other sheriff cases. Shipp v. Bradley, 210 Ky. 51, 275 S.W. 1; Com. v. Nunnelley, 211 Ky. 409, 277 S.W. 506; Carl v. Thiel, 211 Ky. 328, 277 S.W. 485; Davis v. Walker, 212 Ky. 379, 279 S.W. 654 ...         Also we had a jailer's case, Holland v. Fayette ... ...
  • Request a trial to view additional results

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