Perry County v. Holliday

• Decision Date: 19 November 1929
• Citation: 231 Ky. 587,21 S.W.2d 989
• Parties: PERRY COUNTY et al. v. HOLLIDAY et al.
• Court: Kentucky Court of Appeals

21 S.W.2d 989

231 Ky. 587

PERRY COUNTY et al. v. HOLLIDAY et al.

Court of Appeals of Kentucky

November 19, 1929

Appeal from Circuit Court, Perry County.

Action by Perry County and the Commonwealth, for the use and benefit of Perry county, against Tolbert Holliday and others. Judgment of dismissal, and plaintiffs appeal. Affirmed in part, and in part reversed and remanded.

John E Campbell and G. C. Wilson, Co. Atty., both of Hazard, for appellants.

W. A Stanfill, of Hazard, for appellees.

CLAY J.

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. St., 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, 1917, now designated as Ky St. §§ 4307b1 to 4307b4, inclusive. Therefore, with the exception of such specially voted road taxes, the sheriff is entitled to 4 per cent. on all other taxes, including the general levy for road purposes. Caldwell County v. R. D Farmer, Sheriff of Caldwell County (Ky. decided October 22, 1929), 231 Ky. 200, 21 S.W.2d 244. Hence, to state a cause of action for excess commissions on road taxes, the petition must state facts showing the excess commissions were...