Request By:
Honorable Pat Tanner
Daviess County Judge
Courthouse
Owensboro, Kentucky 42301
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Daviess County Sheriff (jailer nominee) wants the county judge to appoint him now as jailer to fill a vacancy in that office. Also the sheriff's chief deputy (sheriff nominee) wants to be appointed as sheriff instead of waiting until the election in November, 1977, and then taking office on January 2, 1978. You say both have conspired in the refusal of the sheriff to receipt the county clerk for the tax bills and mail out the tax bills unless the county judge accedes to their demands. The county clerk has had these tax bills ready for receipting and mailing for a month, but the sheriff has refused to sign the receipt from the clerk. The sheriff is reportedly seriously ill, hospitalized with ulcers and facing an eye operation. You told us by phone that there is no pending litigation on this matter and no suit at present is contemplated.
You ask: Who can sign the tax bill receipt from the county clerk?
The tax bills are required to be delivered to the sheriff by the county clerk before September 15 of each year. This was done. Then the clerk must take a receipt showing the number of tax bills and the total amount of tax due each taxing district as shown on the tax bills. The receipt must be signed and acknowledged by the sheriff before the county clerk, etc. Then upon such delivery of the tax bills to the sheriff, he must mail a notice to each tax payer concerning the taxes. See KRS 133.220(3) and (4). The timing of this tax bill receipt, notice and collection scheme as laid out in the statutes is vital in connection with the orderly payment and collection of taxes.
The sheriff's appointment of deputies is covered in KRS 134.200. Since the sheriff is liable on his bond or bonds for any misconduct or fault of his deputies in the collection of taxes, the statute provides that the sheriff may require his deputies to give bond to him for the faithful discharge of their duties in the collection of revenue.
If a sheriff dies, resigns or is removed from office during his term, his bond sureties may nominate a person to collect revenue for that year, etc. See KRS 134.220. However, the incumbent sheriff is presently in the office of the sheriff and this procedure can have no application so long as he remains in the office of sheriff.
Assuming that the incumbent sheriff is now physically unable to receipt for the taxes and send out his notices, etc., it is our opinion that the incumbent sheriff could delegate these responsibilities to any one of his lawful deputies pursuant to KRS 61.035. That statute provides that any act permitted to be done by a ministerial officer may be performed by his lawful deputy. While the statute does not explicitly require it, we are of the opinion that the safest procedure would be for the sheriff to delegate the necessary function of receipting for taxes, mailing notices, collecting taxes, etc., in writing to one of his deputies, until such time as he can perform himself. In such case of delegated authority the deputy should perform all his official acts in the name of his principal. However, where he fails to do so in some instance it would not invalidate his acts. Conner v. Parsley, 192 Ky. 827, 234 S.W. 972 (1921) 973.
Should the sheriff refuse to delegate these functions while he is incapacitated, the fiscal court, or school board, or Department of Revenue, could file a mandamus action in circuit court seeking an order requiring the sheriff to so delegate these responsibilities. Mandamus lies to compel the performance of ministerial acts. Commonwealth v. McCrone, 153 Ky. 296, 155 S.W. 369 (1913).