Commonwealth v. U.S. Fidelity & Guaranty Co.

• Decision Date: 09 November 1905
• Parties: COMMONWEALTH et al. v. UNITED STATES FIDELITY & GUARANTY CO.
• Court: Kentucky Court of Appeals

89 S.W. 251

121 Ky. 409

COMMONWEALTH et al. v. UNITED STATES FIDELITY & GUARANTY CO.

Court of Appeals of Kentucky.

November 9, 1905

Appeal from Circuit Court, Taylor County.

"To be officially reported."

Action by the commonwealth and another against the United States Fidelty & Guaranty Company. From a judgment of dismissal plaintiffs appeal. Affirmed.

W. C McChord and Jno. T. Moss, for appellants.

John McChord, for appellee.

SETTLE J.

On the 3d day of April 1901, the fiscal court of Taylor county by an order entered of record attempted to levy for the year 1901 a tax of 37 1/2 cents on each $100 worth of taxable property and $1.50 on each poll in Taylor county. At the time this was done R. D. Sanders was the acting collector of taxes for Taylor county for that year; his appointment as such having been made by an order of the fiscal court entered January 29 1901, at which time he accepted the office and executed bond for the faithful performance of his duties with appellee, the United States Fidelity & Guaranty Company, as surety, which bond was approved and accepted by the court. About August 10, 1901, the tax books of Taylor county were received by Sanders as collector, and he at once proceeded to collect and did collect the tax for that year, but failed to account for $2,625.50 thereof, as shown by his settlement made with the commissioner of the fiscal court. Thereupon this action was instituted to collect of the surety on his bond, the appellee, United States Fidelity & Guaranty Company, the deficit. The surety filed a general demurrer to the petition, which was sustained by the lower court. Appellant then filed an amended petition, and, appellee insisting upon its demurrer to the petition as amended, it was again sustained by the court, and the action dismissed.

The demurrer to the petition was sustained, and action dismissed by the lower court, upon the ground that the order of the fiscal court fixing the county tax rate for the year 1901 was and is void; and this is the only question presented for our consideration on this appeal. The order in question reads as follows: "Ordered by the court that there be, and there is, a tax of 37 1/2 cents levied on each $100 worth of taxable property in Taylor county for the year 1901, and $1.50 on each poll in Taylor county for the said year." Section 180 of the Constitution provides: "Every act enacted by the General Assembly, and every ordinance and resolution passed by any county, city, town, or magisterial board or local legislative body levying a tax shall specify distinctly the purpose for which said tax is levied." Manifestly the order of the fiscal court does not conform to the requirements of the section of the Constitution, supra for not only does it fail to "specify distinctly" the purpose for which the tax was levied, but it is altogether silent on that subject. When the Constitution declares in unmistakable terms that a thing must be done in a certain way, it is the duty of those intrusted with the doing of it to observe and conform to the constitutional requirements. The order of the fiscal court, being violative of the provisions of section 180 of the Constitution, is void. Therefore the fiscal court was without authority to accept the bond, and it was not the duty of Sanders to collect the tax attempted to be levied, for which reason the surety in his bond is not liable for such part thereof as he may have collected, but failed to account for. Whaley v. Commonwealth, for Use, etc., 61 S.W. 35,...