Case 14 — Action by Henderson County against Henderson Bridge Company to Recover Taxes fob 1893-4-5-6.

June 19.

#### Henderson County *v.*Henderson Bridge Co.

APPEAL *FROM*HENDERSON CIRCUIT COURT.

From a Judgment Dismissing the Action Plaintiff Appeals.

Reversed.

Judgment — Enjoining Collection of Tax by Sheriff — Conclusive Against (County — Subsequent Action by County.

Held: 1. Kentucky Statutes (1899), section 4129, makes thei sheriff collector, of all taxes, unless otherwise .provided. Sections 4148, 4151, 4184, point out the mode inf collection by levy on land, &e. Section 4131 provides that when the office of sheriff is vacant the county court may appoint a collector of taxes. Coneltitution, section 144, provides that each county shall have a fiscal court, and Kentucky Statutes (1899), section 1834, (provides that the corporate powers of ithe county shall he) exercised by the fiscal courts. Section 1840 gives the court control of ithe fiscal affairs lof the county, and provides that it shall have jurisdiction of all matters relating to the levying of taxes, &c. Held, that as, under .the statutes, the sheriff of a county, so far as his powers affect taxation, is merely a tax collector, a default judgment against him in suit by a taxpayer to enjoin the collection of taxes, in Which the county is noli a party, is mot binding on the county in a .subsequent action by it to collect the taxes.

MONTGOMERY MERRITT, for appellants. N. POWELL TAYLOR, COUNTY ATTORNEY.

1. The right to tax the Henderson Bridge Company upon all its property, tangible and intangible, and the manner1 of asisessing same, the right to collect the taxes by suit, .and ithe sufficiency of the pleadings therefor, 'most if mot all the issues' raised by the pleadings in this case, have been settled by adjudication© sines this litigation began, in favor of appellant 'in Henderson Bridge iCo. v. Negly, 63 S. W. Rep., 989; Louisville Bridge Co. v. City of Louisville, 65 S. "W. Rep., 815; Campbell County v. N. *&*C. B. 'Co., 66 S. W. Rep., 526, except the plea of res adjudieata, and .we mow supplement our brief on that point. It is .expressly held in one or two cases a fine could he- maintained.

*1652. The common practice in Kentucky is to make the city or county a party to a suit to enjoin the collection oí taxes due them respectively.

¡Counsel for bridge company under paragraph Y of their printed 'brief say: “It ha)s been the common practice in this State to sue public officers engaged in the collection of taxes, claimed to be illegal for the'purpose of enjoining them from making such collection. And such judgments) havei always been considered as binding on the political body represented by the officer.” And they cite four oases to'establish that common practice. Two of them practiced by Messrs. Helm *&*Bruce and one by Russell & Helm. It would be hardly fair to the 'remainder of the profession to hold them bound by the practice of 'attorneys in those cases, especially as the question .of r.e» adjudieata or 'defect of parties was not made in said cases, and for the further reason that líher State virtually made itself a party by employing Messrs. Helm *&*Bruce to represent it and paid them, as the Auditor’s report shows, for - their services.

But let's examine that position taken by counsel, further, to see what- foundation there is for it. The icommom) practice in the State has been just the reverse, as shown by the following cases in which both the tax collector .and “the municipality or ¡county were made parties. Paducah /St. Railway Co-, v. Mc-Cracken ¡Co., ác., 49 S. W. Rep., 178; Royer Wheel Oo. v. Taylor Co., &c., 47 S. W. Rep., 876; Eastern Ky. R. R. Co. v. Carter County, *&a.,*11 R., 677; Ryan v. Central City, &c., 54 S. W. Rep., ■2; L. *&*N. R. R. Co. v. Warren County, 5 Bush, 243; Paducah Gas Light Co. v. McCracken County, &c., 105 Ky., 472; City of-Henderson v. .Lambert, 14 Buish, 24; City of Lexington ¡v. Mc-Quillan Heirs, 9 Dana,' 514; Jackson v. Brown, &c., 66 S. W. Rep., 396; Town of ¡Central Covington v. Bark, 56 S. W. Rep., 650. ■

3. The county or fiscal court was a necessary .party defendant to ¡the injunction suits.

■The ancient rule of practice as laid down by Daniel’s ¡Chancery Pleading and Practice, and which is referred (to in 157 XT. S. R., 691 L. Co. Ed., was to require all parties in interest, to be made parties to. the isuit, and if the defect of parties appeared upon the face of the petition, it was ground for demurrer. The Kentucky Code of Practice requiring all suits to be brought in the name of the real party in interest and ¡other parties in interest to be made defendants, .is but a reiteration of, and recognition of this ancient r.ule of practice. (Newman’s Pleading and Practice, p. 21A)

The object was to have an end to litigation between all par*166ties interested in the subject matter of litigation, as only parties! and privies are bound by the judgment.

This court has inore than once said only those are parties who -are named as such. Allen Heirs v. Hall’s Heirs, 1 Mar., 393; M. & St. P. Co. v. Grey, 9 Bush, 137.

Neither the county nor its fiscal court was a party to 'any of •these suits brought by the bridge company against the sheriff alone, to enjoin the collection by him of .the taxes due upon its •tangible and .intangible property.

The .contention of the bridge company is that the sheriff was the legal representative olf the county, and therefore the various judgments by defaulfin question, bound the county. The county upon the other hand says that the fiscal court alone was its legal representative.

By the act of 1892 the fiscal court was created (Ky. S'tat., p. 687). Section 1834 says: “Unless otherwise provided by law, the corporate powers of the several counties of this State shall be exercised by the fiscal courts thereof respectively.” (Section, •1839 authorizes the fiscal court to lelvy taxes, and section 1840 “to regulate and control the fiscal affairs .and property of the county.”

The sheriff is* simply a ministerial officer ex-officio, the collector of taxes, and is not authorized to represent the county in ,any litigation. It was not the sheriff’s duty .to litigate the question as to whether the fiscal court had made' a levy, nor ais to whether the bridge company was subject to, taxation upon its tangible or intangible property, nor as to the manner of assessing same. There was no reason for not making the; county ,or the fiscal court a party — (the real party in interest.

We -do not contend that when a temporary injunction only is sought that the sheriff or tax collector would not be the only party defendant necessary in many cases. But when the merits of the controversy, the subject-matter of the suit is to be litigated so that the final judgment of the court could bei pleaded as res .adjudicata, then the beneficiary of the tax, whem collected— the city or county- — must be made a party, unless) they virtually makethemselves a party by taking charge of the, defense as wa? -lone in the case of Clark v. Louisville Waterworks, Barbour v. Board of Trade and L-. C. & L. R. R. Co. v. ,Schmidt heretofore mentioned, where the State .in the first two cases employed some of the present able counsel representing the .Henderson Bridge Company and paid them for their services.

Suppose that the county had been made a party, in ¡Bhe ease at bar, upon whom would the summons have been served — the sheriff? No. Upon the county judge. Who would have taken; *167charge ,-of the defense) for the county — the sheriff? No; the county judge and county attorney. The sheriff would havei had no voice in the defense of the county. The only interest he would have had in ithe litigation was his commission on the amount of tax enjoined.

How, then, can a judgment against the sheriff alone bind the county or be .pleaded -as reís .adjudicata against the county wEem it was not his legal duty to defend the suit? If the county was .a necessary party, then the judgment against ithei sheriff alone did not bind the county and can inot be pleaded as res adjudicata in this case.

AUTHORITIES CITED.

3. The county or fiscal court was a necessary .party defendant to the injunction suits. Ky. Stats, secs. 1834, 1839 and 1540; 10 E. P. & F., 913-4; Vass v. Union School District No. 11, 18 Kan., 467; Hays v. Hill, 17 Kan., 360; Gilmore v. Fox, 10 Kan., 509; Heinroth v. Kachersperger, 173 111., 212; Lefferts v. Board of Supervision, 21 Wis., 6SS; 40 Conn., 312; Bradley v. Gilbert, 155 111., 154, 39 N* E. Rep., 593; Knoff v. C. R. E. Board, 50, 50 N. E. Rep., 659; Ashton v. City of Rochester, 28 A. S. R., 623; People y. Clark, 70 N. Y., 57S; Knoff y. 1st Nat. Bank of Chicago, 173 111., 331, also 212; Sauls v. Freeman, 24 Fla.,. 209, 12 A. .S. R., 197; Peek v. State, 137 N. Y., 372, 33 A. S. R., 739; Harmon v. Auditor,' 123 111., 5 A. S. R., 502; Gallaher v. City of Moundsville, 34 W„ Va., 26 A. S. R., 94G; State v. Chester R. R. Co., 13 S. C., 280; Foust v. City of Huntington, 113 Ind., 139, 15 N. E. R., 337; Harns’ Parties to Action, secs. IS and 28; Van Fleet Former Adjudications, secs. 568-9; Beech on Injunctions, isec. 399; Black on Judgments, selc. 584; .Daniel Chancery Pleading .and Practice, 4 Am. Ed., 190; L. Co. Ed., 157 U. S'., 691; Roberts v. Davidsion, 83 Ky., 282.

4. The .State made herself a party hy assuming defense .and employing and paying counsel in Barbour, Sheriff, v. Board of Trade, S2 Ky., 645; Louisville Water Co. v. Hamilton, .Sheriff, 81 Ky., 517; Clark, Sheriff, v. Louisville Water ¡Co., 90 Ky., 515.

HELM, BRUCE *&*HELM, attorneys for appellee. (YEA-MAN *&*TEAMAN, of counsel.)

On the late oral argument of this case the .positions! taken and authorities cited bv counsel for appellant were! so totally different in many respects from those presented by his brief on the original submission of this case that it practically .requires; a re-writing of our brief.

At different times the. Henderson Bridge Company brought *168several suits against the 'Sheriff of Henderson counity to enjoin him from collecting certain alleged county taxes which 'he was about to proceed to collect. Some o£ these actions were merely to enjoin the collection roí a *part*of the tax .claimed against the *tangible property*of the bridge company, the other 'pairt having been paid; whiie others of the actiorusi were to enjoin the collection of any part of the tax claimed by the county .against t!he *franchise*'of the bridge company. Final judgments were entered in all of these actions granting the TTijimotlnn sought.

On June 30, 189S, a suit in equity was filed in the1 Henderson Circuit Court of the following style: “The Coonlrnoniwealth of Kentucky, which .sues for the use and benefit of 'the counity of Henderson, and her treasurer, S. O. Soaper, and who. sue in 'the name of the Commonwealth of Kentucky, .plaintiffs, v. The Henderson Bridge Company, defendant.” In this suit “the plaintiffs above named in the caption” alleged that the Henderson Bridge 'Company had for several years), naming them, been assessed *on Us franchise*by the State Board of Valuation and Assessment at various sums, naming them; that payment had been demanded of the county taxes based, on 'theis-e assessmeints, which payments had been refused; and the plaintiffs further alleged that for several years the county .assessor 'had assessed the *tangible*property at $1,000’,000, hut that the company had paid the county taxels based on an assessment of its ■tangible property at only '$049,735.54, and had refused to' pay any more. Therefore, the plaintiffs prayed judgment for thei several amounts iof franchise taxes specified in thei petition, and' for that portion of the alleged taxels on. tangible property which they claimed the defendant had not .paid. Interest .and penalties were also .prayed for.

To this petition the Henderson Bridge iCompamy1 firsit 'demurred, insisting that there! was no statutory authority to. sue for the taxes in question. This .demurrer having: been overruled, the bridge company then answered, pleading among other defenses *res adjudicata,*based on the judgments heretofore mentioned; and referring to the records in those several actions as parts of the answer.

'The circuit court .entered a final judgment sustaining the. plea .of *res adjudicata*and dismissing the petition.

On the original submission in this court counsel for .appellant insisted that the appeal was not only from the judgment dismissing the petition in which the 'county had sued for the taxes, hut that an appeal had also been taken by the county from the various judgments in the original actions in which the *169perpetual injunctions had been gr'anited againslb the 'Sheriff. And the brief on the original submission argued those eases ion their merits.

But at the oral argument lately had, counsel for the appellant abandoned the claim of an appeal from the original judgments of injunction, and 'insisted only on 'the appeal from thei judgment dismissing the county’s petition in the action in which it .sued for taxes.

There are involved in the case, under -the position itakeni by counsel for appellant at the late argument, but two. questions', to-wit:

1. Is there any authority for the maintenance' of this suit by the county of Henderson, for county taxes claimed to be due from the Henderson Bridge Company?

2. Is the plea of *res adjudicóla*good?

We will discuss these two questions in their order.

1. No Right to *Sue.*There is probably no State in the Union in which the rule has been more rigidly enforced than in Kentucky, to the effect that a suit can not bei maintained -to ra■cover a judgment for taxes except under express legislative authority. We ask the court's indulgence while w.ei briefly state the exact status of the decisions, of this court on this question.

In Baldwin v. Hewitt, 88 Ky., 673, this doctrine was announced and rig’idly enforced. In that case the 'State wasi 'Claiming a large; amount of taxes. This court in effect held that these taxes were due.. But notwithstanding this ruling it furtfier held; that there was no authority (to sue for them,, and- therefore' the petition had to be dismissed. On this 'subject thei court .said:

“Tliere is no statute in this) State, save as to railroad companies, authorizing a suit against the taxpayer for his taxes.

“The exercise of the power of taxation isi legislative, 'and not judicial in • character. Neither the levy nor collection of taxes is an inherent power of the judiciary. If *has ordinarily no more poioev to collect them than it has to levy thém. These are 'not judicial acts. . . .*Taxes can, therefore, be collected only through legislative authority. If it does not exist, the remedy is an appeal to the law-making powisr for additional legislation. .

“It is true that although the collection .of taxes iis a ministerial act, yet the Legislature may empower, and even require, the judiciary to do in a- judicial way what ordinarily belongs to the executive branch of the government, the remedy by suit may be given by statute. This, however, has not been done. . .

“The Legislature has expressly provided that a railroad corporation may be sued for its taxes. (General 'Statutes, see. 5, *170art. 3, chap. 92.) This grant of power was given to avoid the evils which would, result -to the public from a distraint of the property; and the enactment implies the existence rof a legislative opinion that in its absence ino such -suit -could- be maintained.”

'The -case just mentioned involved the attempt to -collect taxes on the property of an individual. At th-s- time it was decided there was pending in this court under submission the case of the Louisville Water Company v. The Commonwealth,, o-n appeal from a judgment of the Louisville Law andi (Equity -.Court, in a ease wherein thel sheriff of Tefferson -county -a-nd the Commonwealth, of Kentucky h-ad sued the Louisville Water-Company, a quasi public corporation, seeking to -enforce- the. collection of a large amount of taxes. We had -the hontor -to-represent the Commonwealth in that casie. And when the case of Baldwin v. Hewitt was decided we fea-redi the principle of that decision might be applied in our case-, though we -thought, the two cases were distinguishable; and we thereupon prepared and printed an elaborate bri-ef upon the question of -the power to collect’ taxes by suit, and filed the same in thiis -court as a supplemental brief. The question wasl not .raised o-n t-he other side in our case, and was no-t briefed by the -counsel- for the water company. This court, however, adhered to its- decision in the Baldwin case and applied the principle- thereof to-the water -company, and therefore reversed the judgment of the lower court and directed the petition to be- dismissed’. (Louisville Water Company v. Commonwealth, 89 Ky., 244.)

An examination of the points and aiuthoritie-sl o-f counsel, her ginning with paragraph five of the points for appellee, in the-official report of this case, and als-o of the o-piniio-n of the -court will show how thoroughly the matter was! presented by -bri-ef and considered by the court. Tbe opinion was devoted -solely to this -one question of the power to -sue.

We called the court’s -attention to the fact that we d-id not -seek, and had not obtained, a personal judgment, for tbe taxes against tbe water company, but that we had sought -and obtained only a judgment *in rem,*appointing -a receiver for th-e -property of -the water company with directions to pay the taxes ou-t of the id-come of the company. And we called attention further to the fact that the Louisville Water Company was a quasi public corporation; that this court had held i-n the case of (Louisville-Water Company v. Hamilton, 81 Ky., 522, that it w-a® such a corporation that it furnished water to the inhabitants of a great city, and that its property, therefore, could not be seized an-d. sold by the sheriff for taxes. This being true, we ealled atten*171tion to the fact that unless such a suit as we ha,d brought could be maintained, there was absolutely no> means of collecting the taxes which ithe water company oiwed. We further called attention to the fact that the statute gave an express lien for the taxes, and that as this .lien could not be enforced by sale it was an appropriate case for a court of equity 'to give a remedy of the character sought, ito-wit: By' the appointment of a receiver. In our printed brief we .stated the question to the ■court in the following language:

“This then is the case now presented: The Legislature has imposed a moneyed obligation or.liability upon the corporation. We care .not whether 'this be called a debt or a duty, it isi an obligation or liability to pay money. This court has pointedly called attention to this fact (Greer v. Covington, 83 Ky:, 414), and the statute frequently uses such expression as persons being ‘liable’ for the tax, or ‘hound foi” the tax, and of the tax asa ‘liability.’ (General Statutes, 1883 edition, chap. 92, art. 1, sec. 7; art. 9, sees. 3 and 7, &c.) Them, having created this obligation or liability to pay money, the statute in express terms gives a *lien*on the property of the person liable, to secure the payment of the money thus due. But here it stops (as to the character of property now being considered). It provides ;na mode of procedure at tall for the enforcement of -thiis lien expressly given to secure an obligation expressly created. The question then is, can a court of equity enforce such a lien by proceedings -adapted to the nature of the property?” (See our .printed brief i-n that case, page 3.)

Following this statement of the question wet made an elaborate discussion of the authorities bearing upon it, showing, as we Thought, that a court of equity did have power in such a case to afford a remedy. But in response to this) argument' land these authorities this' court said:

“W.e are aware that it has been held by siolme courts and said by Some text-writers, that if no. specific remedy be given by statute, or only an imperfect or an inadequate1 one, 'then it is but reasonable to infer that a remedy by' suit was intended by the Legislature. *This court has, howevdr, never assented to such a rule. Public poliey, in our opinion, forbids it.”*(Page 251.)

Again, we called the court’s attention to the fact that in such oases as Railroad Company v. Trustees of -Elizabethtown, 12 Bush, 233, -and Louisville Wat-er Company v. Hamilton, 81 Ky., '517, this -court itself had expressly said that the taxes o-f such quasi public corporations as a railroad company or" a water company could *only*be collected under the supervision of a *172court of equity; and that we had proceeded on this principle in. bringing this suit and in drawing the •judgment which was entered. But in response to this argument this court saiid:

“The cases of Johnson v. City of Louisville, 11 Bush, 527; Railroad Co-. v. Trustees of Elizabethtown, 12 Bush, 233, and Louisville Water Co. v. Hamilton, 81 Ky., 517, are not in conflict with the views above expressed. *Expressions of a general character may he found in the argument irt> the, opinions' in those cases which seem to support a different view', hut the question*as-*now presented was not then before the court, nor was it decided.*

“In the last named case- the water company sued out an injunction to prevent the .s-ale of sound property for its taxes. It was not sued for them. It voluntarily came into- a court of equity, asking relief, and under such circumstances! tbel court said: ‘The chancellor having been appealed to by -the appellant (■the water company) for some sort of relief should have-taken cognizance of the case and: required the appellant, by rule, to pay the money into court, and if not, to- place ithei management ■of the corporation in the hands of a receiver; in order that thei burden might he discharged.’ It is apparent) that, case is mot this one.

“If, where a tax has been, imposed and no' remedy or any adequate one furnished for its collection by the statute, it were, in our opinion, a correct rule toi imply! thei right' to sue for it -on account of the silence of the Legislature, yet we would not apply it in view (of the fact that :our Legislature has' expressly provided that a railroad corporation may he sued for its taxes. (General Statutes,, chap. 92, art. 3, ,sec. 5.)

“This was equivalent to a declaration by it that in thei absence of such a statute no- -suit could be maintained.....

“Judgment reversed, with directions -to dismiss the petition.’” ,2. Res Adjudicata. The,defense on which the court below' di-s- - missed the petition was that of *res adjudicata.*

There -is no question presented here as to Whether or not a judgment against the validity of a tax in one year can he pleaded. ,as *res adjudicata*in a suit involving the taxes of a different year. The question in the case at bar is simply as to whether or mot a judgment against the validity of a tax in a particular year is a bar -to a suit to recover those samel taxes for that same year.

T,he judgments i-n the injunction' casesi, enjoininig the collection -of the taxes claimed to he due to. the county of Hendeiracm from the Henderson Bridge Company, are distinctly pleaded in the answer of the bridge company to. this' suit by the county of Henderson. The reply filed by the county to the answer of ths *173bridge company does not controvert a single allegation 'contained in tbe pleas of *res adj'udicata.*Neither does counsel fob the county (now appellant) question that the allegations' in, the pleas of *res adjudicada,*are ini due and proper form. The sole point made by the county is that in -those injunction, isuits in which the judgments against the taxes were entered!, iamld which are now pleaded as¡ *res adjudicata,*-the 'county was not *eo nomine*a party defendant, but thait tbei sole» defendant wasi ■the sheriff of the county, w-hof' under the law, was the tax collector of the> county, and was 'endeavoring as Ssuchi to force payment ,of the taxes by the1 power of the law a.t the time he was enjoined.

It is true the judgments in those injunction cases were default judgments; but counsel for the county does not dispute the proposition that a judgment by default is just a© effectual a bar to a subsequent suit as if it bad been rendered after" the most vigorous contest. And if this proposition was disputed, it i© indisputably established by the anithoritie. (Last Chance Mining Co. v. Tyler Mining Co., 157 U. S'., 683, 691; Harshmam. v. Knox County, 122 U. S., 318.)

One of the judgments in the injunction suits may be taken as a sample of all the rest as follows, to-wit:

“In this cause (No. 1118) it is adjudged that the injunotlon. granted by ilie clerk, Decénjber 1, 1894, be, and the same is, made perpetual, and it is adjudged that 'the plaintiff does not owe, and the defendant -is perpetually enjoined from collecting the sum of $1,488.52 as a (State tax, or $-515.39 as -a county tax for the year 1894. or any part of either.” (Rec. 63.)

Of course the petition in that case .shows that the defendant referred to in the judgment is the sheriff of Henderson county, ■and that ibe was endeaivorimg to collect .a tax'claimed to be due to .the State of Kentucky, and a tax -claimed 'to he due to the county of Henderson, for the year 3894, from the. Henderson Bridge Company. And the petition, in the case! at bar shows that the county is now seeking by .this suit tioi collect this identical ibax for .this identical year' from this same Hendeteoni Bridge Company. .

If it he true that the county of Henderson is not boundi by the judgments in question and can maintain this suit to collect thesa taxes, then we suppose that i.t is equally true that the ■present sheriff of Hemderaoni county, the successor to the .sheriff .who was enjoined, is not hound by the judgments in question aDd could to-day levy upon and sell for these taxes any property of the Henderson Bridge Company which he might he able to find which was outside (of the bridge itself, and not absolutely *174necessary for the performance of the public duty which that company performs. And if this is true, .tiren of course it is further true that the sheriff whom the bridge company .sought 'to. enjoin could have prevented, a judgment by resigning before the judgment was entered; ior could have rendered the judgment completely nugatory by resigning asi soon, as it was entered and allowing another sheriff or1 another tax collector to bei appointed.

Ye believe the proposition that these judgments are not .binding ion the county of Henderson, toelcause .simply judgments against the sheriff of the county, when- acting in his capacity, as tax collector of the county, and because not against the 'County *eo nomine,*will be .surprising certainly to the majority of’ the lawyers of the State, as it is to us. It may be true, as claimed, toy the counsel for appellant, that quite frequently suits, have! been brought against 'officials of the different icitieis or ioo,untiesi of ths State, in which the municipality itself has been made *a,*■party defendant. But it is! certainly true tihat the contrary practice has bean very common, and that the principle justifying' it has been asserted by this ciourt more itlmn thirty years .ago. and acted upon frequently., We know of no way iof finding all the cases in reports where such practice has been followed, but we can certainly refer the court to a .number1 of them, and in some of which the question of the character of. such a suit was expressly considered and -decided,

It -is said that the sheriff does not, in alny .sense represent the county; that the fiscal court represents the county. This proposition thus generally stated, we utterly deny. 'Counsel cites section 1834 iof the Kentucky Statutes that *“unless otherwise provided Try law,*the corporate powers of tihe several counties iof this State shall be exercised by the fiscal courts thereof respectively.” But in the matter o.f the *collection of taxes*it is “otherwise provided by law.” The fiscal court (has no more to do with the *collection*of county -taxes than the sheriff has to d'o with the *levy*of county taxes. The fiscal: co.urit makes contracts for the county, and levies 'taxes to- pay the county’s oblligatioms. The assessor then assesses, or places values upon fEe property in the county. The application of the ¡tax rate fixed by the fiscal court to the assessment as fixed, by the assessor shows the amount of taxes due from .every property owner to the county. This having been ascertained, the sheriff then collects the tax. The fiscal court does, not act tEor or represent the ■county in any matter pertaining to- the assessment or collection of taxes. The assessor does not act fior or represent the. county in. any matter pertaining to the levy or the collection of *175the tax. And the sheriff do-sts not represent ¡the county in any ■matter pertaining to the levy or the assessment of the tax. Bach of these' several officers or tribuna,Is.acts for1 and represents the county in the prescribed sphere of his own duties; hut not -:n the- sphere of the duties of the other. The result is that if no tax rate had been levied, and if' the fiscal court was heiieived to be about to make a levy for the 'purpose- of paying solana obligation which a taxpayer denied, in such a .state of case the taxpayer would bring his suit for injunction against the fiscal court to enjoin the making of the levy. On the other hand, if the levy had already been made, but no- assessment had! been made, he would bring his suit against the assessor to enj-oin the assessment of the property. It wouldi be needless to bring a suit against the fiscal court to enjoin thei levy because the levy, has already been made; and the fiscal court has nothing to do with the assessment which is the thing to, be prevented. So-again, if the levy has been made and the- assessment has1 been, made and the collection of the tax is, all that is left, the injunction in such a ca-se is "brought against the sheriff, as the tax collector, because he is the representative! of the county in the matter of Collection, which is the one. step sought to ha enjoined. In such a case it would be idle to- malte either the assessor or the fiscal court a parity to, the proceeding. And •while we do not say iit would be *improper**to make, t-'ne county *eo nomine*a party defendant, yet we do -say it is not necessary, -and *that the*contrary practice -has been indulged* in -in this State certainly for more- than thirty years; as it has- also been In other States.

It is said the sheriff has 'no money to- pay attorney's, fees or stand the cos-t of litigation. But this pioint is only skin deep, for if there is any ground of defense, and 'the. county chooses •to malee defense, the fiscal court can make *an*.appropriation for the expense of the litigation just as well wherei the sheriff is the nominal party as where the county itself is the nominal party.

•Moreover, as to the *likelihood*of defense being made, there is, really Inore likelihood of defense where the- shriff is made ai party -and the summons served on him than where the county is made a party an-d the summons served on the county judge, because the sheriff has a real subsltanitial personal Interest: in the contest growing o,ut of the -fees or commissions! that are allowed him for the collection of the tax, whereas; the county •judge, on whom the summons wiould he served if the suit were brought against the county, has. no- personal interest in the matter whatever. The r-ssult is that suits against sheriffs or other *176officers of that kind rarely do' 'go by default; and there is certainly no more likelihood that they will be allowed to go. by default than if the county itself were made a party and the .summons served on the judge. Of course there tei a chance in ■either case that it may go by default. This fe simply one of 'the chances of litigation.

Furthermore, as heretofore stated,, if it could he charged that the default judgment was the result of fraud or collusion it might he attacked on that ground, but .there is1 no such attack in thie case at bar.

"We respectfully submit that the judgment should be affix) ned.

AUTHORITIES CITED.

1. No right to sue for taxes. Baldwin v. Hewitt, 88 Ky 673., Lou. Water Co-, v. Commonwealth, 89 Ky., 244; Lou. Trust Co. v. County of Muhlenberg, IS Ky. Law Rep., 397; Grand Rapids ■School Furniture Co. v. Trustees of Pike Co., 19 Ky. Law Rep., 1610; Central R. R. & Bridge Co. v. Com., 106 Ky., 329; Henderson Bridge Co-, v. Negley, 23 Ky. Law Rep-., 746; Lou. Bridge Co-, v. City of Louisville, 23 Ky; Law Rep., 1655; Campbell county v. N. & C. Bridge Co., 23 Ky. Law Rep., 2056; Cov. *&*Cin. Bridge Co. v. O’Meara, 19 Ky. Law Rep., 1438.

2. Res adjudicata. Last Chance Mining Co. v. Tyler Mining Co., 157 U. S., 683, 691; Harshman v. Knox County, 122 U. 8., 318; Maddox v. Graham, 2 Met., 56; 'City of Louisville v. Kean, .18 B. Mon., 13; State v. Canfield, Fla., 23 Sou. R., 59; Patton' v.'Stepliens, 14 Busk, 324; Rogers v. Jacob; 88 Ky., 502; Mayor, &e., v. Wilson, 103 Ky., 326; Thompson v. United States, 103 U. S., 480; Hicks v. Cleveland, 106 Fed. Rep., 459; Sauls v.' Freeman, 24 Fla., 209 (12 Am. S't. Rep., 190); Galaher v. City of Moundsville, 34 W. Va., 730; 26 Am. St. Rep., 946; Ashton v. City of Rochester1, 133 N. V., 187 (28 Am. St. Rep., 619); Lyman v. Farris, 53 Iowa, 498; Ransolm v. City of Pierre, 101 F. R., 665; Zimmerman v. Savage, 145 In,d., 144; 44 N. El Rep., 252; Schmidt v. L., C. & L. R. Co., 99 Ky., 151; Negley, Sheriff, v. Henderson Bridge Co., 21 Ky. Law Rep., 1154.

©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 *177brought 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, *178but 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*179ate 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 *180records 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*181porate 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' *182nature, 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*183rect 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 or-*184destroyed 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 *185and 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.