Shipp, for Use v. Bradley

• Citation: 210 Ky. 51
• Parties: Shipp, for Use, etc. v. Bradley, et al. Shipp, for Use, etc. v. Rodes, et al.
• Decision Date: 12 June 1925
• Court: United States State Supreme Court (Kentucky)

210 Ky. 51

Shipp, for Use, etc. v. Bradley, et al.

Shipp, for Use, etc. v. Rodes, et al.

Court of Appeals of Kentucky.

Decided June 12, 1925.

1. Taxation — Statute Held Not to Dispense with Requirement that Sheriff's Settlement of Taxes Collected shall be Filed with County Court, though it may have been Made Directly with Fiscal Court. — Ky. Stats., section 1884, relating to collection of taxes by sheriff and requiring settlement to be made directly with fiscal court, held not inconsistent with section 4146 requiring such settlement to be filed in county court, and hence does not dispense with requirement that settlement when made shall be filed with county court and spread on its records, although it may have been made directly with fiscal court instead of some person appointed for purpose as directed in section 4146.

2. Taxation — Settlement of Sheriff's County Revenue Account Including School Fund Made with Fiscal Court Held Not to Constitute "Settlements" Required by Statutes. — Purported settlements made with fiscal court of sheriff's county revenue account including school fund which were nothing more than a list of amounts collected by sheriff as taxes and what he had paid out, and did not include any sum retained by himself as commissions, and which were not recorded in county court, held not to constitute settlements, required by Ky. Stats., section 1884, and section 4146.

3. Taxation — Settlement of Sheriff's Account of Taxes Collected can be Made Only with Fiscal Court. — Settlement of sheriff's accounts of taxes collected can only be made with fiscal court, in view of Ky. Stats., section 1884, dispensing with appointment of person to settle with sheriff as required by section 4146.

4. Counties — Petition in Taxpayer's Suit to Recover for County from Former Sheriffs Commissions for Collection of Taxes Held Not Demurrable on Ground Stated. — In taxpayer's suit to recover for county from former sheriffs commissions for collecting county and state taxes, and other fees in excess of $5,000.00 yearly compensation allowed by Constitution, section 246, court erred in sustaining defendant's demurrer to petition on ground that, if sheriffs' settlements with fiscal court had been properly made, it would not affect relief sought only to extent of commissions for collection of local taxes retained by sheriffs, and would not affect excess compensation sought to be recovered as fees and other sources of income of the office.

5. Counties — Taxpayer Suing to Recover Sheriff's Commissions for Collecting Taxes Not Required to Allege that there was an Appointed Person with whom Sheriffs could Settle, and that they had Refused to do so. — In taxpayer's suit to recover for county from former sheriffs commissions for collecting county and state taxes, and other fees in excess of $5,000.00 yearly compensation allowed by Constitution, section 246, plaintiff was not required to allege that there was an appointed person with whom sheriffs could settle, and that they had refused to do so, in view of Ky. Stats., sections 1884, 4146, fixing fiscal court before whom defendants should make their settlements.

6. Counties — Allegation Held Unnecessary in Taxpayer's suit to Recover Sheriffs' Commissions for Collecting Taxes. — In taxpayer's suit to recover for county from former sheriffs commissions for collecting county and state taxes, and other fees in excess of $5,000.00 yearly compensation allowed by Constitution, section 246, allegation that there was an appointed person with whom sheriffs could settle, and that they had refused to do so, was unnecessary in order to recover for failure to observe requirements of sections 932 and 4147 relating to collections of money due county by sheriff not only from taxation, but from all other sources.

7. Sheriffs and Constables — Sheriffs and Sureties are Not Immune from Being Charged with Aggregate Amount of Allowances Made by Fiscal Court. — Though sheriffs and their sureties may be immune from an action to recover allowances made by orders of fiscal court, they are not immune from being charged with aggregate amount thereof, and when correct amounts necessary to compensate requisite number of deputies is ascertained, there should be added to that amount $5,000.00 to which sheriff was entitled, and allowances so made by fiscal court to sheriff should be charged to him in satisfaction of aggregate amount for himself and deputies.

8. Counties — Amounts Other than Allowances Made by Fiscal Court Collected by Sheriff from Whatever Sources would be Due County. — Where aggregate allowances made by fiscal court to sheriff were scarcely more than sufficient to pay sheriff his salary and compensation due his deputies, all other amounts collected by him from whatever sources would be due county.

9. Counties — Taxpayer Not Required to File List of Taxable Property Coming Into Hands of Sheriff in Suit to Recover Sheriffs' Commissions for Collecting Taxes. — In taxpayer's suit to recover for county from former sheriffs commissions for collecting county and state taxes, and other fees in excess of $5,000.00 yearly compensation allowed by Constitution, section 246, plaintiff was not required to file a list of taxable property as returned by county assessor or tax commissioner, as well as other taxable property from other sources that come into hands of sheriff where plaintiff only sought to require sheriff to account to county for moneys actually collected by him, and alleged settlements filed by sheriff only purported to show taxes actually collected and disbursed.

10. Counties — Taxpayer Held Not Entitled to Recover Against Fiscal Court for Failure to Require Sheriff to Make Settlements of Taxes Collected by Him. — In taxpayer's suit to recover for county from former sheriffs commissions for collecting county and state taxes and other fees in excess of $5,000.00 yearly compensation allowed by Constitution, section 246, plaintiff held not entitled to a recovery against members of fiscal court for failure to require sheriffs to make settlements required by statute, especially where court sustained a demurrer to paragraph seeking such recovery and dismissed it without prejudice, and such judgment was not appealed from.

11. Courts — Courts should Not Permit Technicalities to Interfere with Enforcement of Law, but Declared Rules of Procedure should be Substantially Followed. — While courts and all others charged with duty of enforcing law as it is declared should be ever ready to do so, and not to permit immaterial technicalities to obstruct or defeat original public purposes, declared rules of procedure should be substantially followed.

12. Counties — Commissions Paid by State to Sheriffs for Collecting State Revenues, Should be Considered with Fees Earned by Sheriffs as Strictly County Officers. — In taxpayer's suit to recover for county from former sheriffs commissions for collecting county and state taxes, and other fees in excess of $5,000.00 yearly compensation allowed by Constitution, section 246, commissions paid by state to sheriffs in remuneration for collecting state revenues should be taken into consideration along with other fees and commissions earned by them in discharge of their duties as strictly county officers.

13. Sheriffs and Constables — Sheriff is Not an Officer of the State. — Sheriff is not an officer of the state.

Appeals from Fayette Circuit Court.

N.B. HAYS for appellant.

HUNT, NORTHCUTT & BUSH for appellee Bradley.

HUNT, NORTHCUTT & BUSH and GEORGE C. WEBB for appellee Rodes.

GEORGE C. WEBB for appellees members of fiscal court.

HUNT, NORTHCUTT & BUSH and HUMPHREY, CRAWFORD & MIDDLETON for appellee National Surety Company.

OPINION OF THE COURT BY JUDGE THOMAS.

Reversing the judgments in favor of Bradley and Rodes and their sureties, and affirming the one in favor of the members of the fiscal court.

This is the second appeal of the above two cases. The opinion on the first one is reported in the case of Shipp v. Bradley, 196 Ky., 523. A reading of that opinion will disclose that the two principal questions decided were: that the provisions of section 246 of our Constitution limiting the maximum salaries of public officers to $5,000.00, independent of the compensation of legally authorized deputies and assistants, is self-executive; and that plaintiff in these two cases, Paul E. Shipp, as a citizen and taxpayer of Fayette county, could maintain the suits against sheriffs or ex-sheriffs of the county under the facts disclosed in his pleadings and shown in that opinion. Other questions are dealt with in the opinion, but the above two were the principal ones presented and determined. Upon the filing in the trial court of the mandate from this one plaintiff began the filing of numerous amended petitions and, as it would seem, not to be outdone, attorneys for the various defendants, who were two ex-sheriffs of the county (Bradley and Rodes), their sureties in their official and revenue bonds, and members of the fiscal court during their administrations, filled the record with demurrers and almost every conceivable kind of motion known to the practice, such as to paragraph, make more specific, file exhibits, etc., and to render the record more complicated each side engaged in moving to set aside former interlocutory orders, and when such motion would be acted on, other action looking to nullifying it was taken until the record became so confused that the court on motion of some of the defendants directed the pleadings to be reformed by the filing of a substituted petition, which was done in eleven paragraphs, and then the process of making similar motions was again inaugurated. Amended substituted pleadings were filed and the confusion again reached practically the same stage that it occupied when the original substituted pleading was filed, and the record now before us is so complicated and involved as to render it difficult to understand or comprehend....