Commonwealth v. Coleman

• Decision Date: 04 November 1932
• Citation: 54 S.W.2d 42,245 Ky. 673
• Parties: COMMONWEALTH et al. v. COLEMAN, Co. Atty., et al.
• Court: Kentucky Court of Appeals

54 S.W.2d 42

245 Ky. 673

COMMONWEALTH et al. v. COLEMAN, Co. Atty., et al.

Court of Appeals of Kentucky

November 4, 1932

Appeal from Circuit Court, Jefferson County; Chancery Branch, Second Division.

Proceeding by Harris W. Coleman, County Attorney of Jefferson County for a declaration of rights, wherein the Commonwealth and Jefferson County and others were made parties defendant, and wherein the Commonwealth and other defendants filed a counterclaim and cross-petition against plaintiff and other defendants. Counterclaim and cross-petition were dismissed and the Commonwealth and others appeal.

Affirmed.

J. W Cammack, Atty. Gen., and M. B. Holifield, Asst. Atty. Gen for appellants.

Harris W. Coleman and S. L. Greenebaum, both of Louisville, for appellees.

DRURY C.

The commonwealth of Kentucky appeals from a judgment awarding to Jefferson county the whole of certain excess fees.

Harris W. Coleman, county attorney of Jefferson county since November, 1927, filed in the Jefferson circuit court a petition for a declaration of rights, wherein it was alleged that he had as county attorney received fees in excess of those allowed by section 246 of the Constitution. It was further alleged that the county of Jefferson and the commonwealth of Kentucky were claiming title to these fees. The county of Jefferson, its fiscal court, and the individual members thereof were made parties defendant, as was the commonwealth of Kentucky, the Attorney General, the auditor of public accounts, and the state treasurer. The sums collected and involved in this controversy are:

Year	Receipts	Salary	Expenses	Excess
1928	$18,768.57	$5,000.00	$874.19	$12,849.38
1929	25,830.82	5,000.00	996.45	19,834.37
1930	29,627.34	5,000.00	962.72	23,664.59
1931	32,938.55	3,749.94	845.00	28,343.61
				----------
Total excess				$84,736.95

The commonwealth, the Attorney General, the auditor, and the state treasurer filed an answer, counterclaim, and cross-petition against Harris W. Coleman, Jefferson county, the fiscal court, and the members thereof. By this plea the commonwealth claimed all of this money. A demurrer was interposed by Harris W. Coleman for himself and Jefferson county to this pleading. The court sustained this demurrer, and the commonwealth and others declined to plead further; their pleading was dismissed; and they sought and were granted an appeal.

As preliminary to a discussion of this issue, we wish to state the source of the income of the county attorney and the authority therefor:

(a) His salary, which is fixed by the fiscal court, and is payable monthly. Section 1072, Ky. Stats.

(b) Fees of $5 per diem for the examination of candidates for county tax commissioner, payable out of county funds. Section 4042a-11, Ky. Stats.

(c) Commissions of 20 per cent. of amount paid in redemption of land sold for taxes, which are paid to the county attorney by the county clerk. Section 4153, Ky. Stats.

(d) Penalties of 30 per cent. upon recoveries on proceedings against the sheriff for failure to collect from a delinquent taxpayer. Section 4151-4, Ky. Stats.

(e) Commission of 15 per cent. of the amount recovered in proceedings for the assessment of omitted property, which are paid by the sheriff to the county attorney when the judgments are collected. Section 4260b, Ky. Stats.

(f) A fee of $5 taxed as costs for him on all judgments for fines or forfeiture in favor of the commonwealth rendered by any police judge, when the county attorney is present and prosecutes and the fine imposed is less than $10. Section 133, Ky. Stats.

(g) A fee of $5 taxed as costs for him on all judgments for fines or forfeitures in favor of the commonwealth rendered by any county judge or magistrate where the judgment is for $25 or less. Section 133a-1, Ky. Stats.

(h) Commissions of 30 per cent. of all judgments for fines and forfeitures in favor of the commonwealth, rendered by any police judge, when the county attorney is present and prosecutes; said commissions being payable by the state treasurer. Section 133, Ky. Stats.

(i) Commissions of 25 per cent. of judgments rendered by circuit courts for fines and forfeitures, when the county attorney assists in the prosecution; said commissions being payable by the state treasurer. Section 133, Ky. Stats.

(j) Commissions of 40 per cent. of all judgments, fines, or forfeitures in favor of the commonwealth, rendered by any county judge or magistrate, payable by the state treasurer. Section 133a-1, Ky. Stats.

It will be observed that of the ten different sources of revenue outlined above that sources (a) to (g), inclusive, are paid direct to the county attorney, and we can see no imaginable reason why or how the state could claim them under the existing state of the law. The salaries of county officers is a matter which the Constitution requires shall be fixed by law, but for over 40 years the Legislature has failed to do so, attention to which was called in Holland v. Fayette County, 240 Ky. 37, 41 S.W.2d 651.

The sums coming to him from sources (h), (i), and (j) are paid to him by the state treasurer, and concerning these the state makes this claim:

"That all of said commissions belonged to the Commonwealth of Kentucky and were paid by the said Commonwealth by mistake; that neither the Auditor of Public Accounts, the defendant, Clell Coleman, nor the defendant Emma Guy Cromwell, State Treasurer, or any other officer of the Commonwealth of Kentucky, knew at the time that said respective sums were audited and paid that the said plaintiff, Harris W. Coleman, had at the same times collected his full compensation of $5,000.00 for the years in which said respective sums were paid. That neither of said claims or any part of either of them would

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