Commonwealth, for Use, Etc. v. Nunnelley
| Decision Date | 24 November 1925 |
| Citation | 211 Ky. 409 |
| Parties | Commonwealth, for Use, etc. v. Nunnelley, et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Sheriffs and Constables — Sheriff May be Required by County to Account for all Moneys Received by Him as Compensation in Excess of Salary Provided and Compensation for His Deputies and Assistants. — Under Constitution, section 246, sheriff may be required by county in a proper action for that purpose to account for all moneys received by him as compensation either for collection of revenues or by way of fees for performance of duties in his office, in excess of $5,000.00, and fair compensation to a reasonable number of deputies and assistants in good faith employed in his office, which responsibility can not be avoided by sheriff employing an unnecessary number of deputies and assistants, or other subterfuges.
2. Sheriffs and Constables — County Held Entitled to Maintain Action Against Sheriff and Surety for Complete Settlement of Accounts of Sheriff Without Seeking to Surcharge His Settlement with Fiscal Court. — County held entitled to maintain action against ex-sheriff and his surety for a complete settlement of his accounts with county for certain prior years without seeking to surcharge his settlement, which had been approved by the fiscal court, where sheriff had made no settlement for any of the years involved, within meaning of Kentucky Statutes, sections 1884, 4146.
3. Sheriffs and Constables — Court Authorized to Determine on Presentation of Proper Pleadings by County whether Number of Deputies Employed by Sheriff and their Compensation is reasonable. — In action by county against sheriff and surety for complete settlement of accounts of sheriff, question of reasonableness of number of deputies employed by sheriff and reasonableness of their compensation might be presented by county by proper pleading, where a state of facts warranted it, and court would then be authorized to determine from all the facts before it whether number of such deputies and their compensation was greater than interest of taxpayers and of the office required.
4. Sheriffs and Constables — Fiscal Court should have Allowed Sheriff Reasonable Amount Paid for Telephone. — Fiscal court should have allowed sheriff, in view of Kentucky Statutes, section 1840, a reasonable amount paid for telephone bill, since it is now such a necessary fixture in his office as to be a part of the equipment of a "suitable and convenient office."
5. Sheriffs and Constables — Fiscal Court Without Authority to Pay Premiums on Sheriff's Official Bond. — Fiscal court in settlement of sheriff's account was without authority, in view of Kentucky Statutes, section 1840, to pay premiums on sheriff's official bond.
6. Counties — Fiscal Court Without Authority to Allow Expense of Deputies in Making Arrests in Settlement of Sheriff's Accounts. — Fiscal court in settlement of sheriff's accounts was without authority, in view of Kentucky Statutes, section 1840, to allow expenses of deputies in making arrests, since it is duty of sheriff and his deputies in making such arrests to pay their own expenses.
7. Counties — Fiscal Court Without Authority to Allow Sheriff for Post Office Box Rent. — Fiscal court was without authority, in view of Kentucky Statutes, section 1840, in settlement of sheriff's accounts, to allow an item for post office box rent.
8. Counties — Fiscal Court should have Disallowed Claim for Advertising in Settlement of Sheriff's Accounts. — Fiscal Court, in settlement of sheriff's accounts, should have disallowed claim, in view of Kentucky Statutes, section 1840, listed as "advertising," in absence of more definite information.
9. Counties — Fiscal Court should have Disallowed Expenses of Automobile for Use of Sheriff. — Fiscal court, in settlement of sheriff's accounts, should have disallowed expenses of automobile for use of sheriff, in view of Kentucky Statutes, section 1840.
10. Counties — Fiscal Court should have Disallowed Item Relating to Stamps, Stationery and Books in Settlement of Sheriff's Accounts. — Fiscal court, in settlement of sheriff's accounts, should have disallowed item relating to "stamps, stationery and books," in view of Kentucky Statutes, section 1840, where no information was given as to nature of books or stationery, and stationery and stamps being a part of his expenses to be borne out of his compensation.
11. Counties — Item for Destroying Dogs should have Been Disallowed by Fiscal Court in Settlement of Sheriff's Accounts. — Fiscal court, in settlement of sheriff's accounts, should have disallowed item styled "taking up and destroying dogs," in view of Kentucky Statutes, section 1840, in absence of more definite information.
12. Counties — Fiscal Court should have Disallowed Incidentals in Settlement of Sheriff's Accounts. — Fiscal court, in settlement of sheriff's accounts, should have disallowed an item styled "Incidentals," in absence of more definite information, in view of Kentucky Statutes, section 1840.
13. Estoppel — County Not Estopped to Proceed Against Sheriff and His Surety for Complete Settlement of His Accounts for Prior Years. — County held not estopped to proceed against sheriff and his surety for a complete settlement of his accounts for prior years, where sheriff had not settled his accounts, and surety knew it, and pleading of surety was defective for failure to allege knowledge of existence of issuance of "quietus" to sheriff, or that he had property sufficient to satisfy claims of county against him or knew the value of such property and its depreciation until after commencement of the proceeding.
14. Sheriffs and Constables — Sheriff Held Not Entitled to Retain Excess in Commission Paid by State to Him for Collection of State Revenue. — In settlement of sheriff's accounts, sheriff held not entitled to retain commissions paid by state to him for collection of state revenue, which, when added to his other compensation, exceeded $5,000.00 and reasonable compensation to a reasonable number of deputies, since sheriff is a county official, responsible to the county, and is only the agent of the state for collection of its revenue.
Appeal from Scott Circuit Court.
H.C. FORD for appellant.
JAMES BRADLEY and BRADLEY & BRADLEY for appellees.
Reversing.
Scott county, upon relation of H.C. Ford, county attorney, instituted this action in the Scott circuit court against appellee, F.V. Nunnelley, ex-sheriff of that county, and his surety, the United States Fidelity and Guaranty Company, a corporation, for a complete settlement of accounts of the ex-sheriff with the county for the years 1918, 1919, 1920 and 1921, while he was exercising the duties of the office of sheriff of the county and enjoying the emoluments and perquisites of the office; and, to collect from appellee, Nunnelley, certain sums alleged to be due the county.
It is alleged in substance that Nunnelley, as sheriff, received compensation in his official capacity for the year 1918 of $675.95 in excess of the maximum salary of $5,000.00 which he was entitled to receive under section 246 of the Constitution of Kentucky, independent of his legally authorized deputies and assistants and that he likewise received $3,016.98 for the year 1919, and $4,732.14 for the year 1920, and $4,295.93 for the year 1921, for no part of which has he accounted to the county in any settlement. Nunnelley and his surety filed separate answers denying liability to the county for any of the sums claimed. These answers were each in several paragraphs. The county demurred to the answers and to each paragraph thereof of both defendants, and in passing upon and sustaining in part and overruling in part, these demurrers, the court disposed of the case, denying recovery to the county upon all items claimed save the sum of $226.84 for the year 1920, which it was found the sheriff had received in excess of the compensation allowed by the constitutional provision to which we have referred. Section 246 of the Constitution of Kentucky provides:
Construing that section we have held in the case of Shipp v. Rhodes, 196 Ky. 523, and in Shipp v. Bradley, 210 Ky. 51, that a sheriff cannot retain as compensation for his official services to the county, independent of the compensation of his legally authorized deputies and assistants, a sum in excess of $5,000.00, and that the county by proper action, may recover any excess thus received and retained by the sheriff. In the Rhodes case we said:
"Section 246 of the Constitution per se interdicts the retention of more than $5,000.00 per annum as compensation for the official services of the sheriff of the county, independent of the compensation of his legally authorized deputies and assistants."
And further that:
"Section 246 of the Constitution is a restrictive provision and may be enforced by the courts as against a sheriff without the aid of legislative action defining the number of deputies that he may lawfully employ and fixing the respective salaries to be paid for their services."
In this connection we further held that the failure of the legislature to fix the number of deputies and their salaries "does not impair responsibility for violation of the law or render the provision inoperative as to a sheriff, since his statutory duties, if complied with, open the door to investigation of his records and afford means by which the power of the courts may be invoked to compel a faithful accounting of the funds he...
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