Ross v. Board of Education of Jefferson County

• Decision Date: 03 November 1922
• Citation: 196 Ky. 366,244 S.W. 793
• Parties: ROSS, SHERIFF, v. BOARD OF EDUCATION OF JEFFERSON COUNTY. JEFFERSON COUNTY v. ROSS, SHERIFF.
• Court: Kentucky Court of Appeals

244 S.W. 793

196 Ky. 366

ROSS, SHERIFF, v. BOARD OF EDUCATION OF JEFFERSON COUNTY.

JEFFERSON COUNTY v. ROSS, SHERIFF.

Court of Appeals of Kentucky.

November 3, 1922

Appeals from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by the Board of Education of Jefferson County against William E. Ross, Sheriff, and cross-petition by defendant against Jefferson County. From the judgment rendered, defendant and Jefferson County separately appeal. Affirmed in part, and reversed in part on appeal of defendant Ross, and reversed on appeal of Jefferson County.

Charles I. Dawson, Atty. Gen., for appellant Ross.

J. Matt Chilton, Co. Atty., and Wm. F. Clarke, Asst. Co. Atty., both of Louisville, for appellee Jefferson county.

Burwell K. Marshall, of Louisville, for board of education of Jefferson county.

HURT C.J.

These appeals are taken upon the same record. William E. Ross was inducted into the office of sheriff of Jefferson county on the first Monday of January, 1918, having been elected at the previous election of November, 1917. His term began as above stated, and ended on the first Monday of January, 1922, when he was elected and entered upon the duties of his office, the statute law then prevailing relating to the collection of the tax levied by the fiscal court upon the property of the county outside of cities and towns which maintained a system of schools of their own, in which all grades were taught to the satisfaction of the state board of education and graded common school districts, and as construed by the decisions of this court, it was the duty of the sheriff to collect such tax and pay it to the county superintendent as the treasurer of the county board of education, and in computing his commission for so doing all of the county revenues were considered as one fund, and for the collection of which he was allowed a commission of 10 per centum upon the first $5,000 of the fund, and 4 per centum upon the residue of the fund, but the entire volume of the school tax was required to be paid to the board of education, and the commission for collecting same was paid out of the other county revenues; in other words, the school funds were not required to bear any part of their cost of collection, but the commission for collecting same was required to be paid by the county out of the general expense fund. Section 1729, Ky. Stats.; section 1884, Ky. Stats.; section 4426a, subd. 9, Ky. Stats. 1915; Hall v. Ballard County, 140 Ky. 84, 130 S.W. 975; Hill v. County Board of Education, etc., 140 Ky 259, 130 S.W. 1100; Henry County Board of Education v Jones, 140 Ky. 544, 131 S.W. 383; Commonwealth v Mackey, 168 Ky. 58, 181 S.W. 621; Commonwealth v. Mackoy, 168 Ky. 64, 181 S.W. 623. Without any specific designation by statute or otherwise, the first $5,000 of the county revenues, for the collection of which a commission of 10 per centum was paid, was, in the administration of the law, considered to be a portion of the county revenues other than the school tax, which was considered to be a portion of the residue for the collection of which a commission of 4 per centum was paid, and the usual method of paying the commission was by giving the sheriff a credit for the collection of the school taxes in his settlement with the fiscal court of the collection and disbursement of the other county revenues and expenses. Regardless, however, of the method of paying the commission for collecting the school tax, it was very well settled that the county was obliged to pay the commission out of its funds, other than the proceeds of the school tax, which the school authorities were entitled to receive without any deductions from it for commissions for its collection.

At the 1920 legislative session the General Assembly enacted chapter 36 of the Session Acts of that year, by which was created a different system from formerly of choosing a county board of education to hold and control the funds and property of the county schools, and empowering the board to cause to be levied by the fiscal court, for the support of the county schools, a tax upon all the property subject to state taxation within the county "exclusive of property located in graded school districts in cities and towns, maintaining a separate and distinct system of common schools." Section 8. The manner of designating the property subject to this tax, its assessment, and the levy and collection and disbursement of the tax were prescribed by the act. It was made the duty of the sheriff to collect the tax, and upon that subject the act provided as follows:

"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. Provided, however, the commission allowed the sheriff for collecting said tax shall not exceed one per cent. of the total school tax collected. For the purpose of determining the sheriff's commission for collecting the tax provided for in this act, the tax so collected, together with the state and county revenue collected by the sheriff, shall be treated as one fund, and the sheriff shall deduct from the taxes collected under the provisions of this act his commission for collecting same, which shall be in proportion to his entire commission on the combined funds referred to herein, as the school taxes collected bear to all the taxes collected by him." Id.

For the years 1920 and 1921 the appellant Ross, as sheriff, collected the school tax provided for by the above-mentioned act of the General Assembly and paid over same to the treasurer of the school board, but in doing so he deducted from the school taxes 4 per centum of same as his commission for its collection. It seems that the sheriff construed the ambiguous expressions of the above-quoted act to entitle him to have a commission of 4 per centum for collecting the school tax, and to deduct it from same when paying it over to the treasurer of the school board. For the year 1921 the sheriff collected of the county school tax $197,546.89, of which sum he paid to the county board of education the sum of $189,645.30, retaining in his hands the difference between the above-stated amounts, or $7,901.59, for his commission. For the year 1920 he collected $173,555.38, of which sum he paid to the county board of education the sum of $166,613.21, retaining the difference of $6,942.21 as his commission for collecting. The county board of education, conceding that the sheriff was entitled to retain 1 per centum of the tax, and to deduct it from the amount collected for both the years 1920 and 1921, instituted this action against the sheriff to recover of him the other 3 per centum of the taxes which he had retained in his hands, or the sum of $5,206.66 for the year 1920, and $5,926.13 for the year 1921.

The appellant Ross, claiming that the act of 1920 prescribing the commission that a sheriff should receive for collecting the county school tax was not valid as to him, being a sheriff in office when the act became effective, by cross-petition against Jefferson county sought to recover of it whatever sum the county board of education should recover of him with its interest, upon the ground that the county was obligated to pay him the commission of 4 per centum for the collection of the county school tax at the time he was elected and inducted into office, and that the General Assembly was powerless to diminish his compensation as sheriff during his term of office. The circuit court was of the opinion that the above-quoted portion of the act of 1920, as to the collection of school tax and the payment of commissions for same, presented an irreconcilable incongruity, and therefore that no part of it was effective, and that the school board was entitled to the net sum which the tax would produce, and for that reason the sheriff had no right to retain any portion of the tax for his commission, and that the county of Jefferson was obligated to pay him the commission for collecting the school tax, but, inasmuch as the school board only sought to recover 3 per centum of the tax retained by the sheriff, it gave a judgment in favor of the school board against Ross, as sheriff, for the sum of $5,206.66, with interest from January 1, 1921, for the 3 per centum of the tax deducted by him for the year 1920, and $5,926.13, with interest from January 1, 1922, for 3 per centum of the tax for the year 1921, deducted by Ross for his commission, and at the same time adjudged that Ross recover these sums against the county. From these judgments both Ross and the county of Jefferson have appealed.

The board of education contends that the sheriff is entitled to retain only 1 per centum of the school tax for its collection, while the sheriff, Ross. contends that he is entitled to retain 4 per centum of the school tax as his commission, and, if not authorized to retain the 4 per centum, that the county of Jefferson is obligated to pay him a commission of 4 per centum for the collection of the tax; while Jefferson county insists that it was error to hold that it was obligated to pay any commission to Ross for the collection of the school tax. Ross therefore contends that the judgment against him in favor of the school board was erroneous, while the county of Jefferson contends that the judgment of Ross against it was erroneous.

The matter of primary importance to a correct decision of the actions is to determine the effect of the portion of the statute heretofore quoted, which is now a portion of section 4399a8, Ky. Stats., 1922 Edition. In enacting the quoted provision of that statute, the Legislature...