Com. Use Ben. McCreary Cty. Bd. Ed. v. Walker

• Decision Date: 13 December 1932
• Citation: 246 Ky. 679
• Parties: Commonwealth for Use and Benefit of the McCreary County Board of Education et al. v. Walker.
• Court: United States State Supreme Court — District of Kentucky

246 Ky. 679

Commonwealth for Use and Benefit of the McCreary County Board of Education et al. v. Walker.

Court of Appeals of Kentucky.

Decided December 13, 1932.

1. Taxation. — It was duty of sheriff, to whom tax books, made out by county clerk in conformity with fiscal court's levy for school purposes, were delivered, to collect and account for taxes certified, unless exonerated by proper authority (Ky. Stats., sec. 4399a-8).

2. Taxation. — Generally, interest is not collectible on taxes due state, county, or subdivision thereof, nor on refund of such taxes, unless authorized by statutes.

3. Taxation. — Interest is chargeable in state's favor on taxes, assessment or collection of which is obstructed or delayed by taxpayer.

4. Taxation. — Sheriff or tax collector, failing to pay school taxes collected to treasurer of county board of education, becomes liable therefor as of statutory date for payment (Ky. Stats., sec. 4399a-8).

5. Taxation. — Sheriff or tax collector is liable for statutory rate of interest on such portion of school taxes collected as he fails to pay

to treasurer of county board of education monthly, without demand by board or treasurer (Ky. Stats., sec. 4399a-8).

6. Taxation. — Sheriff must account as trustee for taxes collected by him to taxing unit for which collected.

7. Taxation. — Statutory penalty for sheriff's failure to pay over taxes collected cannot be enlarged by charging interest also (Ky. Stats., sec. 4147).

8. Taxation. — Sheriff or tax collector, failing to pay over taxes collected on day fixed by statutes providing no penalty, is chargeable as trustee with interest from such date.

9. Taxation. — Sheriff retaining school taxes collected in excess of amount he considered validly levied held liable to county board of education therefor, with interest (Ky. Stats., sec. 4399a-8).

10. Taxation. — Fiscal court's order, levying school tax exceeding statutory rate, did not relieve sheriff from liability to county board of education for excessive amount collected, including interest (Ky. Stats., sec. 4399a-8).

Appeal from McCreary Circuit Court.

STEPHENS & STEELY and E.L. STEPHENS for appellant.

TYE, SILER, GILLIS & SILER for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

For the years 1927, 1928, 1929, the Board of Education of McCreary county prepared an itemized and detailed school budget showing the amount of money needed for supplementing teachers salaries, for permanent improvements and repairs, and for maintenance and support of schools during each succeeding school year, and also estimated amounts that would be received from the state and the amount that would be needed to be raised by local taxation, including the rate of levy necessary to raise such amount which was fixed by the board at 60 cents on each $100 of taxable property in the county. The annual budget was submitted by the board in writing to the county clerk within the time fixed by the statute; the county clerk presented it to the fiscal court when it convened and the fiscal court entered an order providing for the annual county levy according to the budget. Ky. Stats., sec. 4399a-8.

The tax books were made out by the county clerk in conformity with the levy by the fiscal court of the 60 cent taxes for the county school purposes. They were delivered to the sheriff of the county for collection of the taxes therein authenticated. It was his duty to collect and account for the taxes certified, unless exonerated by the proper authority. Livingston County v. Dunn, 244 Ky. 460, 51 S.W. (2d) 450. The sheriff accepted and receipted for the tax books, and proceeded each year to collect the taxes according to them. He collected from the taxpayers their respective taxes according to the tax books, except the C., N.O. & T.P. Railway Company. It took the position that 10 cents of the 60-cent levy was void. Its taxes are not involved in this action.

Section 4399a-8 authorizes a rate of levy necessary to raise the amount of the budget not less than 25 cents nor more than 75 cents on each $100 worth of taxable property in the county, and "that in any county in which the rate is more than 50 cents to the $100 as levied for school purposes, it will become the duty of the county board of education to maintain its school for a minimum term of eight months; provided that one-half the revenue arising from such taxes, together with the state's per capita apportioned to each county board will enable it to pay $75 per month to its teachers, allowing an average of one teacher for every fifty children in its county schools. Providing further that in any county whose school revenue when so apportioned will not enable it to maintain such a salary schedule for the term as much as eight months, the county board may accordingly maintain the elementary schools for a term of either six months or seven months, conditioned upon the approval of same by the state board of education given after a consideration of the facts submitted to it by the county board, showing its inability to maintain standard salaries for the full term of eight months."

It is argued by the sheriff that the maintenance of the eight-month term and the payment of the stipulated minimum salaries were conditions precedent upon which the validity of the tax levies rested, and that the approval of same by the state board of education was not given in either of the years involved, and that therefore 10 cents of the 60-cent levy was void; that he collected of the taxpayers of the county, excepting the C., N.O. & T.P. Railway Company, the 60-cent levy, and has in his hands as...