
    Case 58. — Action to Surcharge Sheriff’s Settlement —
    Jan. 24.
    Little v. Strow, &c.
    appeal from marshall circuit court.
    Judgment for Plaintiffs and Defendant Appeals.
    Affirmed.
    Sheriffs — Exceptions to Sheriff’s Report of Settlement of Taxes Collected — Action to Surcharge Settlement — Sheriff's Commissions for Collection of Taxes.
    Held: 1, Under Kentucky Statutes, section 4146, providing that the report of settlement made with a sheriff by the commissioner of the court “shall be filed in the county court clerk’s office and be subject to exceptions by the sheriff or county attorney, who shall represen^ the Commonwealth and county, and the county court shall try and determine such exceptions,” no person except the sheriff or the county attorney can file exceptions to the sheriff’s settlement; and therefore the remedy of any other per- ■ son is a suit in equity to surcharge the settlement.
    2. As all taxes levied by a county constitute one fund, and must be taken in the aggregate in estimating the commission due the sheriff for .collecting, the sheriff is only entitled to .a commission of ten per cent, upon the first.$5,000 of the gross county taxes collected by him, including a tax levied by the county court to pay a .subscription of a district in the county in aiid of a railroad..
    REED, UREER, OLIVER & REED, for appellant.
    J. H. Little as sheriff of Marshall county collected taxes from the tax payers of Civil District No. 6 of said county which includes the town of Benton for the years 1895-96 and 97, which district had voted and subscribed for $15,000 of stock in the Paducah and Tennessee Railroad for which subscription bonds had been issued. A levy having been duly made to pay the interest on said bonds, for each of said years, and each year he made a settlement with the commissioner appointed by the fiscal court for said district of said taxes as provided by section 4146 Kentucky Statutes. To these reports of settlements, appellees filed exceptions which were tried and overruled by the county court, and from'the judgment of the county court appellees prayed an appeal to the circuit court which was thereafter dismissed on their motion, Without prejudice, and on June 2, 1899, appellees instituted this action in the Marshall circuit court to surcharge and correct a certain error in said settlements.
    
      Appellant demurred to appellee’s petition and amended petition, which was overruled and then filed answer and amended answer, to which appellee filed demurrer which was sustained by the court.
    Appellant insists that his demurrer to plaintiff’s petition and amended petition, and to the original jurisdiction of the court below, should have been sustained. Appellant also insists that the judgment of the court is erroneous because the taxes collected by him from civil district No. 6, was no part of the county revenue and should not have been considered as such, in computing his commission in collecting same. He claims that his commission should be computed separately upon the district taxes. Bell v. Henshaw’s Exr., 91 Ky., 432; Turley’s Admr. v. Barnes, 19 R., 1808.
    L. P. PALMER, ATTORNEY EOT APPELLEES.
    The only possible chance for the appellant to win, in this case, is the fact that part of the taxes was levied for a certain ■civil district, and for that reason is not a part of the county revenue. We think this question is conclusively settled in our favor in the case of McLean Co. Precinct v. Depoosit Bank of Owensboro, 81 Ky., 254, and Greenwell v. Com., etc., 78 Ky., 320. •See also 4 Ky. Law Rep., 724; 3 Ky. Law Rep., 696; 12 Ky. Law Rep., 795; 20 Ky. Law Rep., 704 and 1017; 21 Ky. Law Rep., 724; 13 Ky. Law Rep., 969; 5 Bush, 225; 10 Bush, 136; 75 N. W. Rep.^ 25.
   Opinion of the court by

JUDGE BURNAM —

Affirming.

By virtue of a provision of tlie charter of the Paducah' & Tennessee Railroad Company, civil district No. 6, in Marshall county, which embraces the city of Benton and a small contiguous territory outside of the city, subscribed for 150 shares of the capital stock of the railroad company, and issued bonds in payment thereof. The railroad charter provided that, if any civil district in any county should subscribe to the capital stock of the railroad company, the county court in which such subscription was made by any civil district should make an annual levy on the taxpayers of the district, and on all property liable to taxation under the revenue laws of the State, sufficient to pay the interest on the bonds as it matured, and the cost of collecting the same, and should appoint a collector, and have the tax collected and applied to the payment of the interest on the bonds; and, when the bonds became due and payable, they should in like manner levy and have collected a tax to pay the bonds themselves, and the cost of collecting the tax. By virtue of this provision of the railroad charter an annual tax was levied by the county court of Marshall county to meet the interest on the bonds, and accumulate a redemption fund for the payment of the bonds at maturity, during the years 1895, 1890, and 1897. During these years the appellant, J. H. Little, was the sheriff of Marshall county, and collected the tax so levied upon the property and taxpayers of district No. 6, amounting in the aggregate to $8,635.06. During the same years he collected the ordinary county levy and revenue proper from the whole county, which aggregated $31,382.46; and for each of these years he made a settlement with the commissioner appointed for the purpose by the fiscal court of Marshall county, as provided by section 4146 of the Kentucky Statutes. In these settlements he was allowed by the commissioner for collecting the county revenue proper 10 per cent, upon the first $5,000, and 4 per cent, upon the residue; and he was further allowed a commission of 10 per cent, upon the entire amount collected upon the tax levy upon district No, 6, as the aggregate amount of the tax was less than $5,000, — both the sheriff and commissioner treating the district tax as wholly distinct from the county levy. In June, 1899, appellees, citizens and taxpayers' of civil district No. 6, instituted this suit against the sheriff, seeking to recover for the use and benefit of the district the difference between 4 and 10 per cent, upon the gross amount collected by appellant for the three years, which they allege was allowed by the commissioner of the fiscal court in violation of law. The defendant admitted that he had collected, as sheriff, the tax levied by the county court upon civil district No. 6, as charged, and that he had been allowed, as compensation upon the gross amount so collected, in addition to the fees authorized by section 1729 of the Kentucky Statutes for the collection of the county revenue, 10 per cent, upon the amount, of tax so collected by him for each year, and claims that this tax was a wholly separate and distinct levy from the original county revenue, and was properly so considered in the settlements made by him with the commissioner of the fiscal court, and that he was entitled to the compensation allowed. He also pleads as an additional defense that, when the report of settlement made by him was filed by the commissioner in the "county clerk’s office, appellees appeared and filed exceptions to so much of his allowance as exceeded 4 per cent, upon the gross amount collected by him, which exceptions were heard and overruled by the county coürt, and that appellees prosecuted an appeal from the judgment of the county court overruling these executions to the Marshall circuit court, and that they thereafter dismissed this appeal on their own motion, without prejudice; and it is contended for appellant that the law afforded to appellees two remedies to correct the alleged errors complained of: One was to file exceptions to that part of the settlement which they complained of, and to have them tried, and, if not satisfied with the judgment of the county court, to appeal to the circuit court; and the other remedy was not to appear in the county court at all, but to institute a suit in equity to surcharge and correct the errors complained of; but that both remedies did not exist, and, having elected to proceed by exceptions filed in the county court, they were estopped from resorting to a bill in equity. And to support this contention we are referred to the cases of Bell v. Henshaw’s Ex’rs, 91 Ky., 432, 12 R. 674, 15 S. W., 3, and Turley’s Adm’r v. Barnes, 103 Ky. 127 (19 R., 1808) (44 S. W., 446).

We will first consider the last defense. Both of the cases referred to were decided under section 978 of the Kentucky Statutes, which provides that “from all judgments and orders of the county court in the settlement of the accounts of personal representatives, assignees, guardians, trustees, curators and other fiduciaries, appeals may be taken to the circuit court.” This section has no application to the settlements made by sheriffs. They are regulated by the provisions of section 4146, and this section is materially different from section 978. It pro-, vides that the report of settlements made with sheriffs by the commissioner of the court “shall be filed in the county court clerk’s office and be subjected to exceptions by the sheriff or county attorney, who shall represent the Commonwealth and county, and the county' court shall try and determine such exceptions. An appeal may be prosecuted by either party, from the judgment of the county court in the same manner as provided by law in appeals from judgments of the quarterly court. Or actions may be instituted in any court of competent jurisdiction to correct the settlement.” Under this statute, nobody can file exceptions to the settlements made by sheriffs, except the sheriff or the county attorney; but the statute provides that even if the county attorney shall file such ex-eeptions, and they are heard and determined in the county court, he may appeal from the judgment to the circuit court, or action may be instituted in any court of competent jurisdiction to correct the settlement by any party in interest. It is clear that under this statute appellees had no right to go into the county court and except to the sheriffs settlements. Their only remedy was to institute a suit in equity to correct and surcharge the items objected to. We are therefore, of the opinion that the proceedings in the county court constitute no bar to the prosecution of this suit.

Wé will now consider the other ground of defence relied on. “The sheriff by virtue of his office is the collector of all State, county and district taxes, unless the payment thereof is by law specially directed to be imade to some other officer.” See section 4129 of the statutes. It has been frequently decided by this court that all tax levied by the county constitute one fund, and must be taken in the aggregate in estimating the commission due a sheriff. This includes taxes levied to pay the subscription of a district in a county in aid of a railroad. See Anderson v. Thompson, 73 Ky., 132; County Court v. Chenault (20 R. 704) 47 S. W., 457; Pendleton Co. v. McMillin (104 Ky., 816, 20 R., 1017) 48 S. W., 154. It follows that appellant was only entitled to a commission of 10 per cent, upon the first $5,000 of the gross county taxes collected by him, including that levied by the county court to pay the railroad tax due by the district. The trial court has very properly apportioned the 10 per cent, commission upon the first $5,000 between the taxes collected by appellant from the whole county and that collected from district No. 6.

Perceiving no error in the judgment appealed from, it must be affirmed.

Response to petition for rehearing by Judge Burnam:

As the purchasers of the property are not before us on this appeal, the court declines to pass on their rights, or to determine whether the sale was void, or merely voidable. Petition overruled.  