Livingston County v. Dunn

• Decision Date: 14 June 1932
• Citation: 51 S.W.2d 450,244 Ky. 460
• Parties: LIVINGSTON COUNTY et al. v. DUNN et al.
• Court: Kentucky Court of Appeals

51 S.W.2d 450

244 Ky. 460

LIVINGSTON COUNTY et al. v. DUNN et al.

Court of Appeals of Kentucky

June 14, 1932

Appeal from Circuit Court, Livingston County.

Action by Burse B. Dunn and others against Livingston County and others. From an adverse judgment, defendants appeal.

Reversed and remanded.

H. F Green, Co. Atty., Charles Ferguson, J. R. Wells, and H. Pate Wells, all of Smithland, for appellants.

M. C Anderson, of Wickliffe, C. H. Wilson, of Smithland, and Cecil C. Wilson, of Glasgow, for appellees.

Wm Marshall Bullitt and Leo T. Wolford, both of Louisville Joseph Polin, of Springfield, and Ernest N. Fulton, of Bardstown, amici curiae.

RICHARDSON J.

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

His report comprised 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, Livingston 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 tangible property	677,961
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Total	$ 1,201,698

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 the 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 (20 cents on $100)	176,533
Exonerations	9,585
	---------------------
Total	. $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 38 cents on $100	14,972.79
176,533 Bank shares at 20 cents 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 Credits.	$ 18,736.36
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 commissioner of the circuit court to determine the total taxes chargeable to Dunn for the year 1925. Certain road district taxes were collected by him, and the taxes chargeable against him for the road taxes were ascertained by the accountant of Dunn and the master commissioner of the circuit court on the same figures, obtained in the same way. The method used by the accountants of the county to determine the amount of the taxes with which Dunn was chargeable was substantially the one adopted by the accountant of Dunn and also the master commissioner; the essential difference between them being only the figures used respectively by them.

The statutes provide an elaborate and complete system for the assessing and equalizing the assessments of the property of the taxpayers, and for the providing the sheriff with books showing the assessment of each taxpayer, his taxable property and taxes, with separate bills, stubs, and receipts attached, showing the exemptions to which he is entitled. The tax books required to be made by the county clerk show accurately and exactly the total taxes the sheriff must collect of each taxpayer, and also account for to each taxing unit. The various sections of the statute dealing therewith were considered by this court in Bush v. Board of Education of Clark County, 238 Ky. 297, 37 S.W.2d 849, 853. It is unnecessary again to review here these sections.

Section 4128a-1, Ky. Statutes, was quoted and discussed in the Bush Case as it relates to other sections, as follows:

"When this has been done, the recapitulation mentioned in section 4114i-15, Ky. Stats., has been corrected to show the total amount of property subject to taxation, and it is grouped according to the tax rate and according to taxing jurisdictions, so that the amount with which the sheriff is chargeable is ascertainable in the same way that an individual tax bill is made out. Real estate totals so much, and the tax rate is so much. Livestock totals so much, and the tax rate is so much. The tax rate is applied for

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