Phillips v. Warren County Bd. of Educ.

• Decision Date: 13 October 1936
• Citation: 265 Ky. 580,97 S.W.2d 408
• Parties: PHILLIPS, Ex-Sheriff, v. WARREN COUNTY BOARD OF EDUCATION.
• Court: Kentucky Court of Appeals

97 S.W.2d 408

265 Ky. 580

PHILLIPS, Ex-Sheriff, v. WARREN COUNTY BOARD OF EDUCATION.

Court of Appeals of Kentucky

October 13, 1936

Appeal from Circuit Court, Warren County.

D. E Phillips, as Sheriff of Warren County, retained certain commissions on all school taxes collected by him, and a commission was appointed to make settlement. The Warren County Board of Education and others filed objections to the report of the Commission and its settlement. Three separate suits were filed and were consolidated by agreement of the parties. The objections were sustained, and D. E. Phillips appeals.

Affirmed.

Rodes K. Myers, of Bowling Green, for appellant.

Stout &amp Herdman and Charles R. Bell, Co. Atty., all of Bowling Green for appellee.

RATLIFF Justice.

D. E Phillips was sheriff of Warren county for the term 1930 to 1933, inclusive, and for the years 1930, 1931, and 1932 he, as sheriff, collected school taxes for Warren county, levied by the fiscal court, including special school taxes for various consolidated school districts, and retained a commission of 4 per cent. on all school taxes collected by him, including franchise and tangible property tax.

A commission was appointed by the county court to make settlement with Phillips as sheriff, and it made its settlement and report to the county court allowing him 4 per cent. commission on all school taxes collected by him. Charles R. Bell, county attorney for Warren county, filed exceptions to the report of the commission and to its settlement, insisting that Phillips was entitled to 1 per cent. commission only for the collection of school taxes instead of 4 per cent. retained by him and allowed him by the commission in its settlement with him. The exceptions of the county attorney are based on section 4399a-8, Kentucky Statutes, being chapter 81 of the Acts of the General Assembly of 1926, amending chapter 36 of the Acts of 1920; and also chapter 82 of the Acts of the General Assembly of 1926, now appearing as section 4426-2, Kentucky Statutes, 1930 Edition.

The county court sustained the exceptions filed by the county attorney and the school districts, whereupon Phillips appealed to the Warren circuit court, and upon a review of the record in that court it also sustained the exceptions, and Phillips has appealed. Three separate suits were filed involving the collection of the taxes for each of the years involved, but as the same questions were involved in each of them they were consolidated on the appeal to the circuit court and were heard together and disposed of in the same judgment, and by agreement of parties they are consolidated in this appeal and will be disposed of together.

It is the contention of appellant that the sections of the Statutes, supra, do not relate to commissions which are allowed on special school taxes and franchise taxes, but that commission for collecting special school taxes in such districts is controlled by section 4458, and the collection of franchise taxes is controlled by sections 1729 and 4168 of the Kentucky Statutes, and that there is no legislation fixing the different rates for that portion of the franchise taxes collected by the sheriff as county revenue which goes to support county school systems. Section 4458 provides that upon the petition of ten legal voters of any school subdistrict the board of education of any county shall submit to the legal voters of such school district the question whether or not a tax shall be levied upon the taxable property of such subdistrict, etc., and provides that the sheriff of the county shall collect such taxes and receive the same compensation therefor as for collecting state and county revenue.

Conceding, without deciding, that the taxes in question were levied under section 4458, being chapter 80 of the Acts of 1926, amending chapter 24 of the Acts of 1916, in view of sections 4399a-8 and 4426-2 and our construction of them in former cases, it is doubtful that the sheriff would be entitled to more than 1 per cent. for the collection of such taxes. Sections 4399a-8, 4426-2, and 4458 were all enacted (or amended as originally enacted) by the Acts of 1926 of the General Assembly. It is the well-known rule that apparently conflicting sections of the Statutes enacted at the same session of the Legislature will be construed so as to give each section effect and meaning if it is reasonably possible to do so. From a careful consideration of the Statutes involved, it is apparent that sections 4399a-8 and 4426-2 are controlling in respect to commissions allowed sheriff for collecting school taxes regardless of any particular section of the Statutes or authority under which they were levied.

But be that as it may, the taxes here in question were not levied by the board of education pursuant to the authority of section 4458, but were levied by the fiscal court of Warren county pursuant to section 4399a-8 and 4426-2. Section 4399a-8 provides: "It shall be the duty of the sheriff of the county in the same manner and at the same time he collects other State and county revenues, to collect the tax imposed under the provisions of this act and after deducting his commission for same as now allowed by law and provided herein, he shall turn such tax over to the treasurer of the county board of education. Provided, however, the commission allowed the sheriff for the collection of such tax shall not exceed one per cent (1%) of the total school tax collected."

Section 4426-2, under which the levy here in question was made, makes it the duty of the fiscal court of the county to levy the school taxes therein provided as recommended by the county board of education, and be included by the county clerk in the regular tax bills rendered for county purposes, and makes it the duty of the sheriff to collect and settle for with the county board of education as in case of county school taxes and at the same rate of commission for collection.

Counsel for appellant in his brief says: "If 4426-2 prevails then the 1% commission should be charged for the collection of special taxes; if 4458 prevails, then 4% is the rate for the collection of such taxes," and cites the case of Naylor v. Board of Education of Fulton County, 216 Ky. 766, 288 S.W. 690, in support of his contention that section 4458 prevails. But it will be noticed that the Naylor Case deals with the question of giving proper notice for an election, but does not deal...