Livingston County v. Dunn

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtJudge Richardson
Citation244 Ky. 460
PartiesLivingston County et al. v. Dunn et al.
Decision Date14 June 1932

Page 460

244 Ky. 460
Livingston County et al.
v.
Dunn et al.
Court of Appeals of Kentucky.
Decided June 14, 1932.

1. Taxation. — Tax books made by county clerk and sheriff's receipt are conclusive against sheriff and county, and sheriff must account for taxes shown thereby, unless exonerated as prescribed by law (Ky. Stats., secs. 4114i-15, 4128a-1, 4239a).

2. Evidence. — Ordinarily, presumption is that county clerk performed ministerial duties of delivering tax books to sheriff and procuring receipt therefor (Ky. Stats., sec. 4239a).

3. Taxation. — Question of constitutional household exemptions cannot be raised in determining taxable property on which county's taxes should be accounted for by sheriff (Ky. Stats., secs. 4019a-5, 4019a-10, 4239a; Constitution, sec. 170).

The question of household exemptions of $250, under Constitution, sec. 170, cannot be raised nor considered in sheriff's action against county to surcharge county with final settlement, because sheriff must account for taxes shown by clerk's tax books and his receipt therefor, whether they were right or wrong, unless exonerated as provided by law.

4. Taxation. — Former sheriff who, after expiration of term, received money due county on road fund, held chargeable therefor.

5. Schools and School Districts. — Sheriff held entitled to only 1 per cent commission for collecting school taxes (Ky. Stats., sec. 4399a-8).

6. Statutes. — Statute prescribing sheriff's duties in collecting school taxes and making settlement held not invalid as revenue raising legislation, because of having originated in Senate (Ky. Stats., sec. 4399a-8; Constitution, sec. 47).

7. Statutes. — Statute is not "revenue measure" within constitutional provision requiring such measure to originate in House, unless it is revenue measure in strictest sense of word, not merely incidentally (Constitution, sec. 47).

8. Court Commissioners. — Special master commissioner was not entitled to fee exceeding $3 per day, statute fixing fee being mandatory, but court could allow for extraordinary services or actual expenses incurred (Ky. Stats., secs. 396, 1740).

9. Court Commissioners. — Special master commissioners must accompany application for allowance of fees or per diem by verification or statutory affidavit (Ky. Stats., secs. 396, 1740).

Appeal from Livingston Circuit Court.

H.F. GREEN, County Attorney, CHARLES FERGUSON, J.R. WELLS, and H. PATE WELLS, for appellants.

M.C. ANDERSON, C.H. WILSON, and CECIL C. WILSON, for appellees.

WM. MARSHALL BULLITT, LEO T. WOLFORD, JOSEPH POLIN, and ERNEST N. FULTON, amici curiae.

Page 461

OPINION OF THE COURT BY JUDGE RICHARDSON.


Reversing.

At the regular election 1921, Burse B. Dunn was elected sheriff of Livingston county, for a four-year term, beginning January 1, 1922, and ending December 31, 1925. He qualified by executing bond and taking the oath of office, required by law. During his term of office, the county was without a county treasurer. As he collected the county taxes, he would pay, on the orders of the fiscal court, claims allowed by it, which he would report in his annual settlements made by him with a special commissioner of the county court. The subject matter in controversy on this appeal is his settlements for the years 1924 and 1925. Before the commencement of this action, the county board of education of Livingston county filed suit against Dunn to surcharge his final settlements of the common school funds for the years 1924 and 1925. During the preparation of that action, both Dunn and Livingston county concluded that errors had been made prejudicial to their respective rights.

Dunn filed this action to surcharge them, charging that either erroneously or fraudulently he had been improperly charged in both settlements with certain items and incorrectly refused credit by certain others. Livingston county and the members of the fiscal court were made defendants.

It may be stated here that no cause of action was stated against the members of the fiscal court and no relief was sought or granted as to them. Livingston county by answer traversed the petition, and by affirmative allegations sought to have the same settlements surcharged, and set out definite items which it claimed were improperly not charged against Dunn and others erroneously allowed to him as credits.

Dunn employed an accountant to audit and settle his accounts for the years 1924 and 1925. Livingston county employed two accountants to examine and report the accounts of Dunn with the county for the same years. Dunn's accountant reported the county was due him as follows:

General expense fund for the year 1924 ________________ $1,396.80
                General expense fund for the year 1925 ________________ 5,979.22
                Road and Bridge Fund for the year 1922 ________________ 264.10
                Road and Bridge Fund for the year 1923 ________________ 262.42
                Road and Bridge Fund for the year 1925 ________________ 4,883.33
                 ____________
                 Total amount due ___________________________________ $12,785.87
                

Page 462

His report comprises 130 pages.

The accountants who were employed by the county undertook to ascertain the taxes with which Dunn was chargeable from the recapitulation sheet made up from the county tax commissioner's book and the certified report of the state tax commission. After their report was completed, it was delivered to one of the counsel of the county, but, by the time it was introduced as evidence herein, changes had been made in it, which the accountants were unable to explain, or to say whether their own report was authentic or correct.

The clerk of the county court was introduced as a witness for the county, "and he was handed while on the witness stand a statement" entitled "Taxable property, Livington County, for local purposes 1924," and a like statement for the year 1925, which he compared with the recapitulation of the taxable property for these years, and also with the certification of the taxable property of Livingston county by the state tax commission. His testimony was confined thereto.

Without attempting to analyse or determine the correctness of the report of the accountant employed by Dunn, or of those employed by the county, or the statement of the county clerk, it will suffice to say that neither of them present the total taxes with sufficient certitude to predicate a finding of the amount of taxes that should be charged to the sheriff, for either the year 1924 or 1925. The report of Dunn's accountant and of the accountants of the county were predicated on erroneous premises, and are conflicting and irreconcilable. The trial court chose to base his judgment on the report of the accountant of Dunn. By his report the assessed value of the lands and improvements, coal, oil, and gas, with intangibles and bank shares, and the raise respectively made by the state tax commission of the assessment thereof for the year 1924, was $4,140,105. This sum did not include two other items shown by the certificate of the state tax commission; namely, live stock and other tangible property.

The value of the live stock as certified
                by the state tax commission was $523,737
                Other tanglible property 677,961
                 ___________
                 Total ___________________________________ $1,201,698
                

Page 463

In the $677,961 (other tangible property) was included manufacturing machinery, $58,687; agricultural products, $85,551; raw materials, $2,719.99; farm products, $15,742; total, $162,696. From the above $1,201.698 was deducted $836,353. This $836,365, it is claimed, was given in the state tax commission's certificate of the taxable property for county taxation, after deducting household exemptions of $365,345. By the process employed by Dunn's accountant and the special master commissioner of the circuit court, the household exemptions of $365,345 were disregarded or not taken into consideration when determining the taxes with which the sheriff was chargeable.

The report of Dunn's accountant for the year 1924 is as follows:

 Amount in State Certification ___________ $4,976,458
                 Less following Deductions:
                 Intangibles _________________ $480,768
                 Live Stock __________________ 523,737
                 Manufacturing Machinery _____ 58,687
                 Agricultural Implements _____ 85,551
                 Raw materials _______________ 2,719
                 Farm products _______________ 15,742
                 Bank Shares (20c on $100) ___ 176,533
                 Exonerations ________________ 9,585
                 ___________
                 Total _______________________ $1,353,322 $1,353,322
                 Property in State certification on which
                 tax was collected by the sheriff ______ $3,623,136
                 Omitted property ________________________ 28,549
                 Franchises &c ___________________________ 288,523
                 ____________
                 Total property on which tax collected ___ $3,940,208
                 $3,940,208 at 38c on $100 _______________ 14,972.79
                 176,533 Bank shares at 20c on $100 ______ 353.07
                 ____________
                 Total property tax collected ____________ $15,325.86
                 Poll Tax Collected ______________________ 3,366.00
                 ____________
                 Total property & poll tax collected _____ $18,691.86
                 Rent from H.F. Green ____________________ 28.50
                 Refund Livingston County v. Dunn ________ 16.00
                 ____________
                 Total revenue charged to the sheriff ____ $18,736.36
                

Page 464

Credits 10% Commission on first $5,000.00 ___________________ $500.00 4% Commission on $13,691.86 _________________________ 547.67 Vital Statistics ____________________________________ 153.00 Election Claims _____________________________________ 704.16 Vouchers filed and paid _____________________________ 17,467.20 ____________ Total _______________________________________________ $19,372.03 $19,372.03 $18,736.36 ___________ $ 635.67

It should be noted this method of ascertaining the taxes chargeable to the sheriff disregards the tax books which are required by section 4239a, Ky. Statutes, and the receipt therefor of the sheriff which this section requires him to execute and deliver to the county clerk.

The same method was used by the accountant of Dunn and the special master...

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