Commonwealth v. Kenneday

Opinion op the coubt bt JUDGE SETTLE Affirming. Appellant Aris Wiggins, for himself and in behalf of all taxpayers of Nicholas county, brought this action in the court below to recover of appellee and the sureties on his official bond as magistrate about $4,000, amount of taxes paid by the taxpayers of the county to the sheriff under illegal levies made by the fiscal court, of which, appellee was a member, at its April and June terms, 1897. It is alleged in the petition that the above amount is made up of 9 cents on each $100 worth of taxable property in the county of Nicholas in the year 1897, and was levied by the fiscal court in excess of the constitutional limit, which is only 50 cents on the $100 worth of property. It is also alleged that the tax thus illegally levied was> by order of the fiscal court collected by the sheriff from appellant and the other taxpayers of the county, and no part of same has been repaid to them; that the sheriff is insolvent, and that it has been held by this court that the sureties in his official bond are not liable for the tax thus wrongfully collected by him. It is further alleged in the petition that appellee and other members of the fiscal court exceeded their authority, and [621] were without jurisdiction to levy the 9 cents tax on each $100 worth of taxable property collected by the sheriff, for which reasons it is claimed appellee and! associate justices of the peace composing the fiscal court are individually liable, and should be made to pay appellant and other taxpayers the amounts thus wrongfully collected of them. A demurrer was filed to the petition, which the lower court sustained, and appellant failing to plead further, his petition was dismissed. It is contended for appellant that the levies made by the fiscal court were judicial acts; that the members of that, court are judicial officers, justices of the peace; and further, that an action may be maintained against such officers by the party injured for official acts exceeding their jurisdiction,, though done neither maliciously nor corruptly. The demurrer was sustained by the lower court upon the ground that in making the levies the fiscal court acted in a legislative capacity, for which reason no legal responsibility can be fastened upon its members for the errors complained of. W'e think this view of the matter sustained by the weight of authority. Thus, in Pennington v. Woolfolk, 79 Ky., 16, 8 R., 42, it is said: “The power to impose taxes is legislation, and can not be conferred under our Constitution upon a strictly judicial tribunal or officer. . . . The power to assess property for taxation — that is, to apportion the tax upon the property upon which the Legislature has imposed it — is not judicial, and can no more be conferred upon a judicial tribunal than the power to levy taxes.” To the same effect is; the opinion in McLean County Precinct v. Deposit Bank, etc., 81 Ky., 254, 5 R., 97. And in Muhlenberg County, etc., v. Morehead, 46 S. W., 484, 20 Ky. Law Rep., 376, and Fleming v. Dyer, etc., 47 S. W., 444, 20 Ky. Law Rep., 689, this doctrine seems to be accepted as fundamental. It is also said in Cooley on Taxation (pages 546, 547) : “And in the case [622] of local taxation there must commonly be two distinct acts of legislation: First, that by the State giving the power to tax, and, second, that by the local Legislature, or quasi legislative authority, levying the tax under the power so given.” It seems to be equally’well established that the legislator or officer who acts in a quasi legislative capacity is not liable in damages for his official acts. Under the Kentucky Statutes of 1903 (chapter 52), the fiscal court is composed of the magistrates of the county and the county judge. They are required to meet in a body to levy taxes and appropriate funds for the needs of the county. Their every act must be the recorded result of their collective and deliberative exercise of statutory powers. They can only act when a quorum is present, which, as provided by section 1837 of the statute, supra, is a majority of the members of the fiscal court. In Mechem on Public Officers (section 644) it is said: “Legislative officers are not liable for their legislative acts. . . . The performance of their duties is owing to the public, to the community at large, and not to individuals, and they would certainly perform their duties in a timid and time-serving; manner, if indeed they would' undertake their performance at all, if every dissatisfied person could compel them to vindicate the wisdom of their enactments in an action for damages.’’ It will be found that the following authorities are in line with the doctrine as thus announced: Cooley on Torts, 276; Jones v. Loving, 55 Miss., 109, 30 Am. Rep., 508; Baker v. State, 27 Ind., 485; County Com’rs. v. Duckett, 20 Md., 468, 83 Am. Dec., 557. It is further said by Mechem (section 646) : “This immunity is not confined to members of national and State Legislatures, but extends to the protection of the members of the inferior legislative bodies, such as boards of supervisors, county commissioners, city councils, and the like.” The following quotation from [623] Jones v. Loving, supra, aptly illustrates tbe reason ior tbe rule in question: ‘Tt certainly can not be argued that tbe motives of tbe individual members of a legislative assembly, in voting for a particular law, can be inquired into,- and its supporters be made personally liable, upon an allegation that they acted maliciously toward tbe person aggrieved by tbe passage of tbe law. Whenever tbe officers of a municipal corporation are vested with legislative poAvers, they bold and' exercise them for public good, and are clothed with all tbe immunities of government, and are exempt from liability for their mistaken use. ... If, on the contrary, tbe aldermen of tbe town of Beauregard exceeded! tbe measure of their authoriy in passing tbe ordinance in question, it was a mere ~brut&m fulmen, and could not for one moment have deprived tbe plaintiff of tbe privileges, emoluments, or fees of bis office. If be chose voluntarily to yield obedience to a void law, it was bis own folly, for which the court can afford him no relief by awarding damages against tbe individuals voting for tbe ordinance.” Tbe magistrates of a county, when assembled as a fiscal court, do not act as conservators of the peace, or in tbe performance of any judicial function appertaining to the office of justice of tbe peace. They are by statute ex officio members of tbe fiscal court, tbe duties there performed by them are statutory, extra duties, quasi legislative in character, and not such as are required of them as judicial officers, therefore, for error or mistake in tbe performance of these legislative duties they nor tbe sureties in' their official bonds,, are liable in an action for damages. We conclude, therefore, that tbe lower court did not err in sustaining tbe demurrer, and tbe judgment is therefore affirmed.