Case 77 — Action by Aris Wiggins for Himself and Other Taxpayers of Nicholas Qounty in the Name of the Commonwealth on the Official Bond of John C. Kenneday, a Magistrate and Member of' the Fiscal Court of Said County to Recover Taxes Illegally Assessed by Said Court.

Sept 22.

#### Commonwealth for, &c. v. Kenneday.

APPEAL FROM NICHOLAS CIRCUIT COURT-J. J. OS’BORNE, CIRCUIT JUDGE.

Judgment for Defendant and Plaintiff Appeals.

Affirmed.

Fiscal Court — Levying Taxes — Liability for Exceeding Constitutional Limit.

The magistrates of a county, who-, *ex officio,*constitute the fiscal court, in. levying taxes as such court act in a legislative capacity, so that they are not liable on their official bonds foil levying a tax in excess of the constitutional limit.

WINFIELD BUCKLER, attorney for appellants.

1. The lower court erred in deciding that the fiscal court is a legislative body and that its members were legislators. The^ Legislature could not have delegated such power to that court if it had so desired. Cooley’s Con. Limitation, 87; Am. & Eng. Ency. Law (1st Ed.), vol. 3, p. 681; Am. *&*Eng. Ency. Law (2d Ed.), vol. 6, p. 1010; Cooley’s Con. Lim. (6th Ed.), pp. 131„ 133; Constitution, sec. 29; Anderson’s Law Dictionary, 611; Throop on Public Officers, sec. 709; Am. *&*Eng. Ency. Law,(1st Ed.), vol. 25, p. 239, note 1; Slaughter v. Louisville, 89 Ky., 121; Constitution, sec. 175; Jernigan v. City of M., 102 Ky., 313;: *619Am. & Eng. Ency. Law (1st Ed.), ml. 25, pp. 181, 239; Bates, &c. v. Speed, 10 Bush, 646; Constitution, sec. 144; Am. *&*Eng. Ency Law (2d Ed.), vol 18, p. 822; Baltimore v. Keely, 81 Md., 106; Williams v. Arapachee Co., 23 Col., 87; The Auditor v. Howard, &e., 14 Bush, 147; Com. v. Weiler, 14 Bush, 218; Slack v. M. & L. R. R., 13 B. Mon., 22; Marshall, &c. y. McDaniel, 12 Bush, 378; Cooley on Taxation (2d Ed.), 41, 43; Constitution, secs. 27, 28.

2. Appellee, as justice of the peace, is liable to appellants in damages occasioned by his exceeding his jurisdiction in making the order of June, 1897. Stephenson v. Wilson, 24 Ky. Law Rep., 1832; Ferrill v. Pettit, 3 Met., 314; Dizon y. 'Cooper, 109 Ky., 30; Glazar y. Hubbard, 102 Ky., 70; Bli-nco v. Head, 103' Ky., 109; Kentucky v. Irrill, 3 Ky., 498; Am. & Eng. Ency. of Law (2d Ed.), yol. 17, 730; Throop on Public Officers, sec. 723; Mechem on Public Officers, sec. 630; Shearman & Redfield (3d Ed.), 171; Osgood y. Clark, 6 Poster, 307; Allen y. Archer, 49 Maine, 346; Perry v. Buss, 15 N. H., 222; Newman’s Pleading and Practice, 162; Jaggard on Torts, vol. 1, secs. 210, 213; Sal-lard v. Jones, 5 Bush, 90; Bouvier Just., vol. 3, 564; Mechem on Public Officers, sec. 642; Anderson’s Law Dictionary, 79; Cooley on Taxation, 794, 789; Am. & Ehg. Ency. lof Law (1st Ed.), vol. 25, p. 475, note 1; Am. *&*Eng. Ency. of Law (2d Ed.), vol. —, p. 238; Whaley v. Commonwealth, 110 Ky., 154; Eli v. ■Thompson, 3 A. K. M., 985; Mechem on Public Officers, sec. 901; Com. for use, &c., v. Stone, 24 Ky. Law Rep., 1297; Hale v. Ames, *2*T. B. M., 143; Jaggard on Torts, veis. 210, 213; Newman on Pleadings & Practice, 157; Ency. of Prae. & Plead., note 4, pp. 807, 808; Hutchins v. Pulaski Co., 11 Ky. Law Rep., 117; Piper y. Pearson, 61 Am. Dec., 440; Clark v. May, 61 Am. Dec., 470; Kelly y. Bemis, 64 Am. Dec., 50; State v. Shacklet, 37 Mo., 280; Vaughn v. Coughdon, 48 Am. Rep., 758; Am. & Eng. Ency. of Law, vol. 17, 1058; Joske v. Irvin, 43 South W. R., 280; Am. *&*Eng. Ency. of Law, vol. 12 (2d), 777; Stacks v. Simmons, 58 S. W. R., 958; Am. *&*Eng. Ency. (2d), vol. 18, 47.

MORGAN & HUGHES, attorneys toe appellee.

POINTS AND AUTHORITIES CITED.

1. The levy of taxes is legislative and the fiscal court acted in a legislative capacity in making the levy. Pennington v. Woolfolk, 79 Ky., 16; McLean Co. Precinct v. Dep, Bank of Owensboro, 81 Ky., 254; C. N. O. *&*T. P. v. Com., 81 Ky., 492; Muhlenberg Co. v. Morehead, 20 Ky. Law Rep., 376; Ky. Constitution. secs. 27 and 28; Fleming v. Dyer, &c., 20 Ky. Law Rep., 689; Cooley on Taxation, pp. 546, 547.

*6202. The legislator or member of the fiscal court is not liable in damages for his deliberations and conclusions, etc. Ky. Statutes, chap. 52, secs. 1839, 1840; Ky. Statutes, sec. 1836; Ky. Statutes, secs. 1842, 1843; Mechera on Public Officers, sec. 044; Cooley on Torts, (1 Ed.), 276; Jones v. Loving, 55 Miss. 109, 30 Am. Rep., 508; Baker v. State, 27 Irid., 485; County Comrnrs. v. Duckett, 20 Md., 469, 83 Am. Dec., 557; Mechem on Public Officers, see. 646; 1 Am. Lead. Cas. Marg. p. 653; Borough <of Free-port v. Marks, 59 Penn. St, 253; Throop on Public Officers, sec. 709.

3. Neither the magistrate nor his sureties on his bond as justice of the peace are liable in damages for the act of voting the levy complained nf. Ky. Statutes, sec. 1833; Com. use, &c. v. Stone, &<?.., 24 Ky. Law Rep., 1297; Whaley, &c. v. Com. Use, &c., 23 Ky. Law Rep., 1292.

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 *621were 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 *622of 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 *623Jones 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.