Perry County v. Holliday

• Decision Date: 19 November 1929
• Citation: 231 Ky. 587
• Parties: Perry County et al. v. Holliday et al.
• Court: United States State Supreme Court — District of Kentucky

231 Ky. 587

Perry County et al. v. Holliday et al.

Court of Appeals of Kentucky.

Decided November 19, 1929.

1. Taxation. — Action against sheriff and sureties to surcharge certain settlements alleged to have been made by him may be brought in name of county and in name of commonwealth for its use and benefit, though such action may also be brought in name of fiscal court; the real party in interest being the county.

2. Taxation. — Sheriff of county is entitled to 4 per cent. for collection of all taxes, including general levy for general road purposes, with exception of taxes levied under Ky. Stats., sec. 4307b4, authorizing special taxes for road purposes.

3. Taxation. — Settlement by sheriff of county, which was not filed in county court, and never approved or accepted by county court, was imperfect, and not conclusive, and was subject to attack in action by county and the commonwealth for use and benefit of county to surcharge settlement.

Appeal from Perry Circuit Court.

JOHN E. CAMPBELL and G.C. WILSON, County Attorney, for appellants.

W.A. STANFILL for appellees.

OPINION OF THE COURT BY JUDGE CLAY.

Affirming in part and reversing in part.

In this action by Perry county and the commonwealth of Kentucky for the use and benefit of Perry county against Tolbert Holliday, former sheriff of Perry county, and his sureties, to surcharge certain settlements alleged to have been made by him for the years 1922, 1923, 1924, and 1925, and in the main to recover commissions improperly allowed, a demurrer was sustained to the petition as amended, and the petition was dismissed. Plaintiffs appeal.

There is no merit in the contention that only the county attorney can bring an action like this, or that the action must be brought in the name of the fiscal court. The amended petition discloses that the institution of the action was authorized by an order of the fiscal court, and was brought by an attorney especially employed for the purpose. While such an action may be brought in the name of the fiscal court, that method is not exclusive. The real party in interest is the county, and there can be no doubt that the action may be brought in its name and in the name of the commonwealth for its use and benefit.

The principal claim for each of the years in question is for excess commissions allowed on road taxes collected; it being claimed that on such collections the sheriff was entitled only to a commission of 1 per cent. The only statute limiting the sheriff's commission to 1 per cent. is section 4307b4, Ky. Stats., which, by its terms, applies only "to the taxes levied hereunder," that is, to taxes not exceeding 20 cents a year on each $100 of taxable property voted under the Act of April 25,...