Madison County v. Hamilton

• Decision Date: 05 February 1932
• Citation: 243 Ky. 29,47 S.W.2d 938
• Parties: MADISON COUNTY v. HAMILTON.
• Court: Kentucky Court of Appeals

47 S.W.2d 938

243 Ky. 29

MADISON COUNTY v. HAMILTON.

Court of Appeals of Kentucky

February 5, 1932

Rehearing Denied April 22, 1932.

Appeal from Circuit Court, Madison County.

Action by Madison County, by, etc., against A. H. Hamilton. From an adverse judgment, plaintiff appeals.

Affirmed.

G Murray Smith and James S. Lackey, both of Richmond, for appellant.

Burnam & Greenleaf, of Richmond, for appellee.

DIETZMAN C.J.

This case was submitted to the court below on a stipulation which recited that the appellee was the sheriff of Madison county appellant herein, for a period of four years beginning the first Monday in January, 1926, and ending the first Monday in January, 1930; that upon the expiration of his term as sheriff on the first Monday in January, 1930, he, pursuant to the provisions of chapter 129, p. 440 of the Acts of 1928 part of which now appear as part of section 4135 of the Kentucky Statutes, 1930 Edition, kept in his possession all unpaid tax bills until the 1st day of May, 1930, and from such bills collected state, county, road, and school taxes that in addition to the collection of these taxes he advertised during this period under the provisions of section 4149 of the Kentucky Statutes and in the manner therein directed the sale of property belonging to 421 delinquent taxpayers and collected from each of said taxpayers after such advertisement a sum in excess of $1 each; that during the year 1929, the appellee, after all necessary and proper allowances for deputies and other legitimate deductions had been made, received as his own compensation the full constitutional limit of $5,000. On this stipulation, the appellant insisted that the appellee was not entitled to any compensation for the services he rendered in collecting the delinquent taxes in 1930 because, as it contended, he had no right to make such collections, but, if he did, having received $5,000 for the year 1929, he could not receive any for collecting the delinquent taxes in 1930, since such service should be treated as a continuation and part of his services for the year 1929. Appellee took just the opposite position. The parties also were not in accord as to what remuneration for collecting the delinquent taxes appellee should receive if it should be decided that he was entitled to any remuneration. The court below on this stipulation of facts and contentions of the parties found that the appellee had a right to collect the delinquent taxes he did in the year 1930 and was entitled to a reasonable compensation for such service, which compensation he fixed at 10 per cent. upon the amount of the state taxes, which the appellee had collected, such amount being less than $5,000, a like commission on the county taxes collected, they being less in amount than $5,000; and 1 per cent. on the road and school taxes collected, and that he was entitled to $421 for having advertised the sale of the property of the 421 delinquent taxpayers. The aggregate amount thus allowed came to $1,296.54, and from this judgment appellant has prosecuted this appeal.

The right of the appellee to collect the delinquent taxes he did in 1930 is based upon the 1928 amendment to section 4135 of the Statutes, which, after such amendment and as it now stands, reads: "The outgoing sheriff, as soon as his successor has been qualified and his bond approved, shall immediately vacate his office, deliver to his successor all books, papers, records and other property held by virtue of his office and shall make a full and complete settlement of his accounts as sheriff. Except that the outgoing sheriff shall keep in his possession all unpaid tax bills and shall collect and account for same as provided by law, and shall have until the first day of May after his term of office has expired to make his settlement with the auditor of public accounts and the fiscal court of his county and to receive his quietus, and immediately thereafter he shall deliver these records to his successor. On the failure of any outgoing sheriff for ten days to comply with the provisions of this section, he shall be deemed guilty of a misdemeanor and, on conviction, be fined in a sum not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) and be liable on his bond for any default."

That part of this section now pertinent which was inserted by the amendment of 1928 appears in italics. The first contention of the appellant is that this amendment is unconstitutional because it is in violation of section 161 of the Constitution, in that it undertakes to extend the term of office of the sheriff beyond the four years for which he had been elected in 1926, contrary to the provisions of section 161 of the Constitution, which, so far officer be extended beyond the period for as pertinent, reads: "Nor shall the term of any such [city, county, town or municipal] which he may have been elected or appointed."

The appellee contends that his term of office as sheriff was not extended by this act of 1928, but that he was simply designated by that act as delinquent tax collector of the delinquent tax bills of 1929 during the period between January and May of 1930. The pertinent constitutional provisions here involved are section 99, which declares the sheriff to be ineligible for re-election or to act as deputy for the succeeding term; section 106, which provides that the fees of county officers shall be regulated by law; section 171, which provides that "all taxes shall be levied and collected by general laws;" and section 161, to which we have already referred. It will be noted that nothing in these sections of the Constitution gives the sheriff as such the right to collect taxes and the right to designate who shall...