Affirming.
This case involves a declaration of rights and powers arising from the fact that the present sheriff of Scott county, George G. Barkley, whose term expires the first Monday in January, 1934, has been elected to the office of county judge of that county and expects to qualify as such on the same day. Section 4135, Statutes (Supplement), as construed in Madison County v. Hamilton,
1. The office of special tax collector clearly is incompatible with the office of county judge. Section 165, Constitution; section 3746, Statutes. Aside from any specific constitutional or statutory prohibitions, incompatibility depends on the character and relation of the offices and not on the matter of physical inability to discharge the duties of both of them. The question is whether one office is subordinated to the other, or the performance of one interferes with the performance of the duties of the other, or whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest. McQuillen on Municipal Corporations, sec. 469; 22 Rawle C. L. 412; Hermann v. Lampe,
2. Although designated by the statute as the special collector of these taxes, the outgoing sheriff is under no legal duty to accept the office. There is no attempt on the part of the statute to compel him to do so. If there were, its constitutionality might well be doubted.
3. If the outgoing sheriff should fail to qualify as tax collector by executing the bond required by law, a vacancy in that office would exist and it would become the duty of the county court to fill it according to the provisions of section 4131, Statutes.
4. The result of this conclusion is to deny the claim of the incoming sheriff that, if the outgoing sheriff does not qualify, since the qualification of the outgoing sheriff is a condition precedent to his assumption of the office, he, the incoming sheriff, will be entitled to collect the taxes by virtue of his office, under the terms of section 4129, Statutes, providing that the sheriff *Page 4 shall be the collector of taxes unless the payment thereof is specially directed to be made to some other officer; and also under the provisions of the first part of section 4135 directing the outgoing sheriff to immediately vacate his office and deliver all books and papers to his successor and make settlement. We think the trial court properly disallowed any right in the incoming sheriff to do this because of the act of 1928, re-enacted in 1932 (section 4135, Supplement to the Statutes), modified the law relied upon by providing that the special tax collector should perform this duty of completing the collection of taxes charged against the outgoing sheriff according to the terms of section 4128a-2 et seq. Madison County v. Hamilton, supra. Moreover, there is no provision for charging the incoming sheriff with these taxes, and under the law the sheriff cannot be required to execute a revenue bond until June 1, 1934, although he is permitted to do so. Section 4130, Ky. Stats. Supp. 1933.
5. Should the outgoing sheriff elect not to qualify as special tax collector after the expiration of his term as sheriff, he may make settlements with the state and the various taxing districts through their designated officers and it will be their duty to accept a proper and correct settlement. The settlements, of course, are for all money which was collected or received by the sheriff during his term. He will be entitled to a credit against the amount of taxes charged to him under the provisions of section 4128a-2, Statutes, for all taxes remaining uncollected. These are to be charged to the special tax collector. It will follow that when such settlements are made, the sheriff and the sureties on his bonds will be relieved of liability according to the various applicable statutes and judicial decisions. Section 4134, Statutes; Carl v. Thiel, Sheriff,
6. Although the incoming sheriff does not become the special tax collector by virtue of his qualification as sheriff and is not chargeable with the uncollected taxes, we perceive no incompatibility between the two offices. James v. Cammack,
Since the judgment is in accord with these conclusions, it is affirmed.
Whole court sitting.