Henderson County v. Henderson Bridge Co.

©pinion op the court by JUDGE HOBSON Reversing. The county of Henderson instituted suit against the Henderson Bridge Company to recover certain taxes alleged to be due for the years 1893, 1894, 1895, and 1896. The bridge company resisted judgment on the ground that every item of the taxes sued for had been adjudged illegal in suits — 177 — brought by it against the sheriff of Henderson county, final judgment having been entered in each of these suits perpetually enjoining the collection of the taxes. The plaintiff demurred to the plea of res judicata. The court -overruled the demurrer,.and, the plaintiff declining to plead further, the action was dismissed. The only question to be determined on the appeal is whether the judgments rendered in the former actions by the bridge company against the sheriff bind the county, although, it was not a party to those suits. In those cases the bridge company alleged that Henderson county had levied no tax for the years named, that its property had not been assesed for taxation, and that the sheriff had not been authorized to collect the tax. The sheriff did not answer the petition, and judgment by default was entered to the effect that the plaintiff did not owe the tax, perpetually enjoining the sheriff from collecting it. Appellee relies on the principle that a judgment against the legal representatives of a -county is conclusive against it and all its citizens. The rule is thus stated in Freeman on Judgments, section 178: “The position of a county or municipal corporation towards its citizens and taxpayers is, upon principle, analogous to that of a trustee towards his cestui que trust, when they are numerous, and the management and control of their interests are by the terms of the trust committed to his care. A judgment against a county or its legal representatives in a matter-of general interest to all its citizens is binding upon the latter, though they are not parties to .the suit.” To same effect is Black on Judgments, section 584. The principle stated in these sections is that a judgment against a county or its legal representatives in a matter of general interest to all the people of the county is binding not only on the official representatives of the county, — 178 — but on all its citizens, though not made party defendant by name; otherwise there would be no end to litigation. But no question arises in this case between any of the citizens of Henderson county and appellee. The only question is-whether the county is bound by default judgments in favor of appellee in actions between it and the sheriff, to which the county was not a party. The question how fár a munipality may be bound by a judgment against one of its subordinate officers is not touched upon in either of these sections. In the latter part of section 178 of Freeman on Judgments, it is said: “Though its officer is a nominal party to a suit, and the municipality is not joined with it, a judgment is conclusive for or against it, if it was the real party in interest, and as such prosecuted or defended the action.” The rule that,one who prosecutes or defends an action in the name of another is bound by the judgment, though not nominally a.party to it, is of general applicar tion, and has been recognized by this court. Schmidt v. L., C. & L. Railroad Co., 99 Ky., 113, 18 R., 65, 35 S. W., 135, 36 S. W., 168. But this rule does not apply here, as no defense was made to the action against the sheriff. The judgment against the municipality binds its citizens, because it is their legal representative; but can it be said that the county is bound by the default judgment against the sheriff for-this reason? A judgment binds only parties and privies. The heir is bound by a judgment against his ancestor; the distributee by a judgment against the administrator; but, unless there is some privity, one person is never bound by a judgment against another. The ground upon which a municipality is held bound by a judgment against certain of its officers is that these are its legal representatives, who are by law authorized to speak for it and control its affairs; but this can not apply to subordin — 179 — ate mdnicipal agencies having no power to speak for the municipality or control its action. In none of the adjudged cases has the municipality been held bound by a default judgment against any of its officers, except those who had charge of its affairs as its chief managing agents. Thus, in Lyman v. Faris, 53 Iowa, 498, 5 N. W., 621, the validity of a tax having been determined in an action against the board of supervisors, who were the managing agents of the county, it was held that an action to enjoin the collection of the tax could not be maintained by a taxpayer, as the supervisors represented all the taxpayers of the county in the defense which they had made to the former action on the same ground. To the same effect are State ex rel. Wilson v. Rainey, 74 Mo., 229; Harmon v. Auditor, 123 Ill., 122, 13 N. E., 161, 5 Am. St. Rep., 502. In Gallaher v. Moundsville, 34 W. Va., 730, 12 S. E., 859, 26 Am. St. Rep., 942, certain taxpayers, suing for themselves and all other taxpayers of the county, sought an injunction against the delivery of certain bonds, which was refused. Then other taxpayers, who were not named as parties in the first suit, brought a similar suit, suing for themselves and all other taxpayer. The first action was held a bar to the second. See, to same effect, McCann v. Louisville (23 R., 558), 63 S. W., 446. Were the rule otherwise in this class of cases, there could be no end to litigation until every taxpayer in the county had brought his individual suit. In Sauls v. Freeman, 24 Fla., 209, 4 South, 525, 12 Am. St. Rep., 190, the county commissioners were sought to be enjoined from moving the county records in a proceeding instituted by certain taxpayers. There had previously been a mandamus awarded against the commissioners to remove the records, ■and this judgment was held to bar the second suit; but the commisioners were empowered by law to remove the — 180 — records and were, therefore, the representatives of the people of the county in this matter. State ex rel. Brown v. C. & L. Railroad Company, 13 S. C., 290, rests on the same ground. None of these cases involved a judgment against an inferior ministerial officer who was not by law* intrusted with the disposition of the matters in controversy. In no case cited or decided, so far as we can find, has an inferior officer been allowed to accomplish indirectly by means of a judgment against him what he could not do directly. In all the cases where the judgment against the officer was held a bar, his official act without the judgment would have bound the municipality. The question, then, to be determined, is, has the sheriff in the collection of taxes such power, under our statute, as to make him the legal representative of the county so that a judgment against him will bind the county? By section 4129, Kentucky Statutes, 1899, “the sheriff by virtue of his office shall be collector of all State, county, and district taxes, unless the payment thereof is, by law, specially directed to be made to some other officer.” This statute confers upon him only power to collect the taxes. The mode of collection is pointed out in sections 4148, 4151, 4184, Id., by distraint, levy on land, or attachment. By section 4131, if the office of sheriff is vacant, the county court may appoint a collector of taxes. The powers of the sheriff are the same as those of the tax collector. By section 114 of the Constitution each county shall have a fiscal court, composed of the county judge and justices of the peace; or a county may have three commissioners, who, together with the county judge, shall constitute the fiscal court. Pursuant to this provision of the Constitution is section 1834, Kentucky Statutes, 1899: “Unless otherwise provided by law, the cor — 181 — porate powers of the several counties of' this State shall be exercised by the fiscal courts thereof respectively.” Also section 1840: “The fiscal court shall have jurisdiction . . . to regulate and control the fiscal affairs and property of the county, . . . and to execute all of its orders, consistent with the law and within its jurisdiction, and shall have jurisdiction of all such other matters relating to the levying of taxes as is by any special act now conferred on the county court or court of levy and claims.” By section 1883 the officer who may collect the State revenue in each county shall also collect the county levy. It will thus be seen that the entire control of the fiscal affairs of the county is vested in the fiscal court, of which the sheriff is not a member, and that his sole power in the matter of taxes, is limited to that of a tax collector. The powers of a tax collector and the limitations upon his authority are thus well stated in Cooley on Taxation: “The. authority of a collector of taxes to collect is his warrant. The duplicate is but a memorandum of the amount he is to collect from the parties therein named respectively. Without a warrant, the collector becomes a trespasser as soon hs he intermeddles with the property of the taxpayer.” Page 292. “It is not the business of the collector to question the fairness or propriety of any tax which has been committed to him for collection. If the assessment is excessive, the party assessed must make the objection, and not the collector.. His duty is to collect the list committed to him, and he can not excuse 'himself for any failure to exhaust his authority in collecting on the pretense that the person taxed should have been assessed otherwise than he was.” Page 500. “In general, any mere ministerial officer to whom process is issued, which proceeds from an officer, or board,, or other body having authority to issue process of that' — 182 — nature, which process is legal in form, and contains nothing-on its face to notify or apprise him that it is issued without authority, will be protected in serving it, even though in fact it was issued without authority of law. This is a rule not only essential to the protection of such officers, - but absolutely required also for the due dispatch of public business.” Page 559. The tax collector, therefore, in the collection of his tax warrants, stands substantially as the sheriff in executing a ft. fa. or other final process which is delivered to him. In acting under such a writ the officer is protected if the writ is valid on its face. He is not the agent of the plaintiff. The sale made by him is the act of the law, and the plaintiff in the writ is in no way bound by the acts of the officer if he leaves the law to take its course without directing the officer in the discharge of his duties. Freeman on Executions, section 273; Rorer on Judicial Sales, section 46. The sheriff, in the collection of. his revenues, is a ministerial officer, charged with a specific duty, which is to collect the money on the tax bills, and pay it over to the person entitled to receive it. He is without power to dispose of the fund, or to release the taxpayer from liability, or to reduce the amount to be paid by him, or to do anything involving the fiscal interests of the county. He has no authority to represent the county in any litigation. He can not employ counsel for it, or subpoena witnesses on its behalf, or do any act at its expense, however necessary, in the litigation for the protection of its rights. In the collection of the public dues, he is simply the agent of the law, performing- duties imposed on him by the law. The county is not responsible for his acts out of court unless it directs or controls them; and the same rule must apply to his acts in court, for he can not accomplish by nonaction in court what he could not accomplish by di — 183 — rect action out of court. The law does not impose on the sheriff the burden of defending suits against the county. The expense of such litigation might be far beyond his means. When the rights of the county are to be determined, it should be sued, so that it may control the defense, pay the expenses, and take such steps as its interests may require. There are other officers charged with certain duties ministerial in character in connection with the collection of taxes that must be' regarded as the representatives, of the county if the sheriff can be so regarded. Thus it is the duty of the assessor to assess the taxpayers. But it would not be maintained that a default judgment suffered by an assessor enjoining him from assessing the property of a taxpayer would bar the State or the municipality from proceeding under section 4241, Kentucky Statutes, 1899, to have the omitted property assessed. It is the duty of the-county clerk to copy the. tax list and deliver the copy to the sheriff for him to collect on. ■ If a taxpayer were to enjoin the county clerk by a default judgment from copying-his list and delivering it to the assessor, this judgment would not conclude the Commonwealth or the county, or prevent it from collecting its taxes. None of the tax cases decided by this court touch the-question. It is true, suits to test the validity of taxes have been brought in the name of the sheriff, and, where ■ the litigation has been conducted by the State or municipality in the name of the officer, it is bound by the judgment; but the interests of the municipalities of the State, as well as sound legal principles, require that they should be made parties defendant to actions against the tax collector,, where the purpose of the action is to prevent them from collecting their revenues, for the power to tax involves the power to exist, and their usefulness might be crippled or184 destroyed if the collection of taxes levied for their support could be defeated by judgments in actions over which they had no control. A county may be sued. Section 51 of the Civil Code of Practice provides: “In an action against a county the summons must be served on the presiding- judge of the county court, or, if he be absent from the county, upon its attorney.” In People v. Squire, 110 N. Y., 666, 18 N. E., 362, the plaintiff had obtained a mandamus against the commissioner of public works, and relied on that judgment as res adjudicate, between him and the city. The court, deeming the matter free of doubt, simply said: “The city of New York is not a party to the litigation, and is not bound by any judgment heretofore entered in this proceeding.” In the subsequent case of Peck v. State, 137 N. Y., 372, 33 N. E., 317, 33 Am. St. Rep., 738, the court, approving this case, said: “In People v. Squire, 110 N. Y., 666 [18 N. E., 362], we held that a judgment in a mandamus proceeding- against the commissioner 'of public» works for the city of New York did not bind the city for the reason that it was not a party to the litigation.” In Gilmore v. Fox, 10 Kan., 509, a suit was brought against the county clerk and county treasurer to enjoin the collection of certain assessments made by the city of Emporia, without making it a party. It was held that the city was the real party in interest, and was a necessary party to the action. The court said: “If the city can not collect these special assessments, it must resort to general taxation to raise the amount. But, before it can be properly determined that the city can not collect these special assessments, the city must have its day in court.” The same principle was followed in Voss v. Union School District, 18 Kan., 467, where á suit to enjoin a collection of taxes was brought' against the treasurer and sheriff. The court said: “Said treasurer — 185 — and sheriff were merely nominal parties, and the school district was the real party in interest.” To the same effect are Knopf v. Chicago Real Estate Board, 173 Ill., 196, 50 N. E., 658; Heinroth v. Kochersperger, 173 Ill., 205, 50 N. E., 171, and Bradley v. Gilbert, 155 Ill., 154, 39 N. E., 593. In the last case an effort was made to enjoin the action of the county board as to dieting prisoners without making the county of Cook defendant. The court said: “Whatever may be said as to the right or policy of county boards to adopt the method of fixing the amount to be paid for dieting prisoners shown by this bill to have been pursued in Cook county, before that method can be judicially pronounced contrary to law and void, the alleged offender must be given its day in court.” See, also, Beach on Injunction, 373; Carpenter v. Grisham, 59 Mo., 251; Samis v. King, 40 Conn., 312; Lefferts v. Board of Supervisors, 21 Wis., 688; 10 Ency. of Pleading and Practice, 913, 914; Attala County v. Niles, 58 Miss., 48. The other questions made in the case seem to be settled in Henderson Bridge Co. v. Negley, 23 R., 746, 63 S. W., 989; Louisville Bridge Co. v. Louisville, 23 R., 1655, 65 S. W., 815; Campbell-County v. Bridge Co., 23 R., 2056, 112 Ky., 659, 66 S. W., 526. The judgment is reversed, and cause remanded, with directions to sustain the demurrer to so much of the answer as pleads the former adjudication in bar of the action, and for further proceedings consistent herewith.