Commonwealth v. Polk

• Decision Date: 30 October 1934
• Citation: 256 Ky. 100,75 S.W.2d 761
• Parties: COMMONWEALTH v. POLK, Court Clerk, et al.
• Court: Kentucky Court of Appeals

75 S.W.2d 761

256 Ky. 100

COMMONWEALTH v. POLK, Court Clerk, et al.

Court of Appeals of Kentucky

October 30, 1934

Appeal from Circuit Court, Franklin County.

Action by the Commonwealth of Kentucky against John W. Polk, County Court Clerk of McCracken County, and another. From the judgment, the plaintiff appeals.

Reversed for proceedings consistent with opinion.

Bailey P. Wootton, Atty. Gen., and S. H. Brown, Asst. Atty. Gen for the Commonwealth.

Wheeler Wheeler, & Shelbourne, of Paducah, for appellees.

RICHARDSON Justice.

John W Polk was elected clerk of the McCracken county court, on the 4th day of November, 1929, and on being inducted into office executed bond to the commonwealth of Kentucky, required by section 373, Kentucky Statutes, conditioned that he "will faithfully discharge all and every duty of the office." Section 2739g-62, Kentucky Statutes, imposed upon him, as county clerk, the duty of collecting the fees due the state, as provided by the act of which this section is a part, and to report and remit each month to the State Tax Commission "all moneys collected during the previous week *** and make all checks payable to the state treasurer." Upon his failure so to report and remit, as provided in the act, "for more than seven (7) days after the same is due, he shall be required to pay a penalty of ten per cent. (10%) on the amount of money due in addition thereto."

Prior to January 3, 1931, Polk, as clerk of the county court of McCracken county, collected from the owners of motor vehicles, license taxes aggregating $1,362.67, but failed and refused to pay it to the state treasurer.

The commonwealth of Kentucky, by proper officers, instituted this action in the Franklin circuit court, wherein it set forth these facts, and sought to recover of Polk the $1,362.67, the 10 per cent. penalty and interest at the rate of 6 per cent. per annum, from January 10, 1931, until paid.

As his defense, Polk pleaded that on December 31, 1930, as county clerk, he had collected from the taxpayers and automobile owners of McCracken county, license taxes on automobiles and other taxes, and at 4:30 o'clock p. m., December 31, 1930, he deposited in a bank in the city of Paducah, Ky. $9,547.06, being the entire amount collected by him up to that hour; that this deposit was made two and a half hours after the regular closing hour of the banks of the city; and that the time of making this deposit was less than an hour before the end of the business hours on that date in the city. To use his language, the deposit "was made at the latest hour at which this defendant could deposit in said bank, or any bank, in the city of Paducah, funds collected by him as county clerk of McCracken County"; "that in spite of the late hour at which said deposit was made, automobile license taxes to the amount named in the petition, viz, One Thousand Three Hundred and Sixty-two Dollars and Sixty-Seven Cents ($1,362.67) were paid him by taxpayers and automobile owners of McCracken County, Kentucky, after 4:30 o'clock P. M. *** That it was the duty of this defendant to accept same in payment of said license taxes, that he was required to, and did, accept same in his official capacity as county clerk of McCracken County." "The amounts so collected by him, after 4:30 o'clock P. M., *** were placed by him and his deputies in a strong, iron safe in his office in the court house in the city of Paducah, Kentucky," which "was equipped with a combination lock and could not be opened or entered by persons ignorant of said combination lock," which was known "only to the defendant and some of his trusted deputies"; the "safe was locked in the office of the defendant in the court house building in the city of Paducah," and the "office was closed at about the hour of midnight on December 31st, 1930 and the court house building was locked." He asserts that after 4:30 o'clock p. m., on that date, the safety deposit vaults in all of the banking houses of the city were closed; "that there was no place in the county of McCracken, or elsewhere, where this defendant could have more safely kept or guarded said funds after 4:30 o'clock P. M. on said date."

He also alleges "that in the precaution taken by him to guard and protect said funds, he exercised ordinary care and exercised a higher degree of care than that exercised by ordinary, prudent persons in their own affairs and in protecting their own property or funds in like or particular circumstances"; but in spite of the precaution taken by him, as aforesaid, that sometime between midnight, when his office was closed and the safe securely locked and the combination set, and 6 o'clock a. m., on January 1, 1931, "thieves, burglars, bandits or criminals, unknown to the defendant, and without his knowledge, broke into the court house building, entered same, broke into his office and entered same, removed the safe from the office by dragging or rolling it into another part of the court house, and by the use of high explosives, broke open its door and removed therefrom the contents, including the $1,362.67," the sum sued for. "He states that he was not protected or indemnified in any sum by insurance in said loss by burglary or robbery, and that it has since been impossible for him to recover or collect, in whole or in part, the amount so lost." He asserts that he exercised a higher degree of care than that imposed upon him as bailee or trustee of the funds, in his hands as county clerk. These facts were pleaded as a bar to a recovery of the $1,362.67.

He endeavors to substantiate these allegations by his own testimony; that of Flint F. Sellers and Willard C. Landfear, regular deputies in his office; Ernest Wilson, janitor of the county courthouse; and Claud Graham, sheriff of the county.

The facts not being disputed, the determinate question becomes one of law.

Both the commonwealth and Polk recognize two distinct rules of liability of an officer having custody of public funds. The commonwealth insists that Polk's liability is that of an insurer. He contends that his liability is that which the common law imposes on him as bailee or trustee, and his common-law liability was not enlarged by his official bond; that it simply afforded security for the performance of his duties, and the fact his safe was violently robbed in the nighttime, of money belonging to the state, is a valid defense to this action on his official bond for the recovery herein. To sustain his insistence he cites to us: Breckinridge County v. Gannaway, 243 Ky. 49, 47 S.W.2d 934, 936; Johnson v. Fleming, 116 Ky. 680, 50 S.W. 855, 21 Ky. Law Rep. 4; Sweeney v. Com., 118 Ky. 912, 82 S.W. 639, 26 Ky. Law Rep. 877; Denny, Banking Commissioner v. Thompson, 236 Ky. 714, 33 S.W.2d 670; Edwards v. Logan County, 244 Ky. 296, 50 S.W.2d 83; Hill v. Fleming, 128 Ky. 201, 107 S.W. 764, 32 Ky. Law Rep. 1065, 16 Ann.Cas. 840; Commonwealth v. Fisher, 113 Ky. 491, 68 S.W. 855, 24 Ky. Law Rep. 300; Commonwealth v. Bodley, 31 S.W. 463, 17 Ky. Law Rep. 561; State v. Houston, 78 Ala. 576, 56 Am.Rep. 59, and Jordon, County Atty., v. Baker, County Judge et al., 252 Ky. 40, 66 S.W.2d 84, 87.

To sustain the argument that the "Kentucky authorities commit this court to the law enforcing strict liability of an officer holding public funds," the commonwealth cites to us section 3746, Kentucky Statutes; Johnson v. Fleming, Commissioner, 116 Ky. 680, 50 S.W. 855, 21 Ky. Law Rep. 4; Goodloe v. Fox, 96 Ky. 627, 29 S.W. 433, 16 Ky. Law Rep. 653; Commonwealth v. Tate, 89 Ky. 587, 13 S.W. 113, 12 Ky. Law Rep. 1; Griffith v. Com., 10 Bush, 282; Commonwealth v. Godshaw, 92 Ky. 435, 17 S.W. 737, 13 Ky. Law Rep. 572; Taylor, Drainage Commissioner, v. Fidelity & Cas. Co. of New York, Inc., et al., 246 Ky. 598, 55 S.W.2d 410; Edwards v. Logan County, 244 Ky. 296, 50 S.W.2d 83.

In Board of Education of Jackson v. Hatton et al., 253 Ky. 828, 70 S.W.2d 923, we considered the question of liability of a collector of taxes for school purposes, where his failure to account for the fund was due to the insolvency of a bank when he had exercised ordinary care in selecting the bank in which to deposit the fund. In Breckinridge County v. Gannaway, supra, the right of the county to recover of its sheriff, and his surety, the taxes collected by him and the liability of the sheriff therefor, were involved. The sum sought to be recovered was deposited to his credit, as sheriff, in two banks at the county seat, after it was collected by him. The county insisted the sheriff was liable absolutely and at all hazard for the actual payment of the money collected by him. The prior opinions of this court were reviewed and the liability of a bailee was discussed, followed by this statement: "We shall not attempt to reconcile these cases, nor is it necessary in the instant case to choose between the two conflicting principles."

In Jordon, County Atty., v. Baker, County Judge, et al., the sheriff of Knox county collected taxes for the county and the County Board of Education, which he deposited in separate accounts in his official capacity in the First National Bank of Barbourville. After making the deposits, but before he was required by law to make a settlement with, and pay over to the proper authorities, the funds in his hands, the bank closed its doors and continuously remained in that situation. But there was nothing in the record showing it was insolvent, or that its assets, when eventually liquidated, would be insufficient to meet its obligations and especially those of its depositors. In our opinion disposing of the questions involved therein, it was written: "There is a marked divergency of opinion among the various courts of the country as well as the views of text-writers," "as to what is the...