Nichols v. Logan

• Decision Date: 13 June 1919
• Citation: 213 S.W. 181,184 Ky. 711
• Parties: NICHOLS, COUNTY COURT CLERK, ET AL., v. LOGAN.
• Court: Kentucky Court of Appeals

213 S.W. 181

184 Ky. 711

NICHOLS, COUNTY COURT CLERK, ET AL., v. LOGAN.

Court of Appeals of Kentucky.

June 13, 1919

Appeal from Circuit Court, Boyle County.

Suit by F. T. Logan against J. B. Nichols, County Court Clerk, and another. From the judgment rendered, all parties appeal. Affirmed.

Henry Jackson, of Danville, for appellants.

Charles C. Fox, of Danville, for appellee.

THOMAS J.

The purpose of this suit is to obtain a construction, and a direction for the proper administration, of chapter 112 of the Session Acts of 1918, page 483. According to the first section of the act, it "shall be known and may be cited as an act to promote and protect live stock industries in Kentucky," and is what is commonly known as the "dog tax law." The power of the Legislature to enact the statute is not called in question; but, if it were a similar statute, having the same purposes in view and differing only in its administrative features, was passed by the Legislature and approved March 1, 1906, being chapter 10 Session Acts 1906, page 25. This latter act was upheld, as being within the constitutional powers of the Legislature to enact, in the case of McGlone v. Womack, 129 Ky 274, 111 S.W. 688, 17 L. R. A. (N. S.) 855. The reasoning of the opinion in that case meets with our approval, and we would not be inclined to depart from it, if the question was again presented.

The suit was filed by plaintiff and appellee, F. T. Logan against the defendants and appellant, J. B. Nichols, county court clerk of Boyle county, and S. H. Nichols, treasurer of the county, and in the petition it is averred that on November 7, 1918, plaintiff lost 47 head of grade sheep, which were killed by dogs, and that the owners of the dogs were unknown to plaintiff; that plaintiff immediately and on the same day applied to a justice of the peace for the county, and made known to him the fact of the killing of the sheep, and the justice thereupon appointed two appraisers, who assessed the damages at the sum of $22.50 for each sheep killed, amounting in the aggregate to $1,057.50. This assessment was made pursuant to the provisions of section 25 of the act, which is subsection 25 of section 68b, third volume, Carroll's Statutes, 1918 edition. It was further alleged that the justice of the peace before whom plaintiff made complaint certified on the appraisement that due diligence had been made to ascertain whose dog or dogs did the damage, and as thus certified the claim was presented to the defendant county court clerk of the county, and demand made of him that he issue his order or warrant upon the defendant treasurer in favor of plaintiff for the amount of the assessment of his damages, and that the clerk refused to issue his order, and the treasurer announced his purpose not to pay it, if issued. Plaintiff prayed for a mandatory order against each of those officers, directing and commanding them to discharge their duties under the statute as plaintiff construed it; i. e., that the county clerk be required to issue his order to the treasurer, and that the latter be required to pay it on presentation.

The joint answer filed by defendants admitted the allegations of the petition, but attempted to justify their respective refusals because of the great doubts which each of them entertained with respect to their duties under the peculiar phraseology of the act, and because of the facts alleged with reference to the number of claims on file for payment out of the live stock fund of the county, which fund was insufficient to pay the claims in full, some of which had been filed during the month of December, 1917, and others between January 1, 1918, and March 28th following, when the act under consideration was approved, while still others were filed after the approval of the act. They alleged that a part of the live stock fund on hand accumulated under the provision of the 1906 act, and before the approval of the 1918 act, and which part had been turned back into the treasury of Boyle county by the auditor of public accounts after January 1, 1918; that the remainder of the fund in the treasury of Boyle county was collected for license fees and under other provisions of the 1918 act, and that it was uncertain and doubtful as to whether the unpaid claims allowed in December, 1917, should participate at all in the fund collected during 1918, or whether the claims allowed between January 1st of that year and the time of the approval of the act under consideration should participate in such funds; further, that if either or both of such class of claims should participate, it was also doubtful and uncertain as to how the participation or distribution should be made between those classes of claims and those allowed after the approval of the act, and if upon an equal basis, whether the claims should each be paid in full in the order in which they were allowed and established, or whether the entire fund for the year 1918 or any subsequent year should be prorated upon the claims filed during and up to the expiration of the year, and the balance be carried over as accumulated claims to participate in the collections for the next year. It was also alleged in the answer that under the provisions of section 28 of the act under consideration plaintiff should be allowed but $15 per head for the sheep he lost, instead of $22.50, since the maximum amount for "grade sheep" is fixed by that section at $15.

An agreed statement of facts was filed, and the court upon submission directed by its judgment the defendant county court clerk to issue his warrant upon the treasurer to each claimant for the amount of his claim, if established according to the provision of the statute under which it was made, including those established under the 1906 act during the month of December, 1917, as well as those established during the year 1918 up to the time of the approval of the act, and also those allowed and established afterwards during that year, and that he should number such warrants, and they should be presented by the claimant to the defendant treasurer, who was ordered and directed to pay them in full in the order in which they were issued by the county clerk, but that no claims made and allowed in the year 1917, or any prior year, should be honored by the county court clerk or the county treasurer, if the claimant had received his pro rata on his claim for that year according to the provisions of the 1906 act. It was further ordered that the county court clerk and the treasurer should proceed in the same way in the future; i. e., the one issuing warrants for claims and the other paying them in the order in which they were made and allowed. The judgment further reduced plaintiff's claim to the basis of $15 for each head of sheep lost by him. Both plaintiff and defendants objected and excepted to the judgment, and each of them have appealed therefrom.

For convenience we shall hereafter refer to the 1906 act as the "old act" and to the 1918 act as the "new act." Both the old and new acts provided for the creation of a county live stock fund, to be raised by a license tax levied upon each dog in the county. The new act provides for a larger fund, by increasing license fees and augmenting it by the collection of fines for such violations as may be committed against its provisions. The old act provided for the payment out of the county fund for only loss or damage to sheep, while the new act provides for payment out of the fund which it creates for loss or damage to sheep and other live stock and poultry. In both acts the injuries to be compensated for out of the funds were such as were committed only by dogs, Under the old act no claim for damages under it could be paid until it was considered and allowed by the fiscal court of the county, which could not be done by that court until the claim had been ascertained and filed with the county court clerk of the county as much as 30 days before the meeting of the court. If it allowed the claim, it was then filed with the auditor of public accounts and he, after the 1st day of the following January, would draw a warrant upon the treasurer of the state in favor of the claimant for the amount allowed by the fiscal court; but if the live stock fund to the credit of any county was not sufficient to pay all of the claims for that year in full the auditor would prorate it among all of the claimants, issuing to each a warrant for his pro rata share there was no provision in that act whereby any unpaid portion of any claim, because of insufficiency of funds to pay it in full, might be carried forward into the succeeding year, and either be paid out of the fund collected for that year or prorate on the balance of the other claims which might accumulate during that year. In other words, the old act seems to provide that, when a claimant received his pro rata of the fund provided for in the year in which his claim arose and was allowed, he was not entitled to collect any other sum thereon, and the pro rata payment which he received would operate as an extinguishment of his claim. From the express requirements of the statute, however, it was impossible for the auditor to pay or prorate upon any claim which might arise 30 days before the last sitting of the fiscal court of that county for that year, since it could not consider...