Request By:
Mrs. Jo Westpheling
Editor and Publisher
The Hickman Courier
P.O. Box 70
Hickman, Kentucky 42050
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have just written us that at the regular meeting of the Fulton County Fiscal Court the county judge and four magistrates voted unanimously on a resolution that permits the Fulton County Sheriff to charge ten percent (10%) commission for collecting taxes for the Levee Board and the Board of Directors of a watershed conservancy district.
You have written that the resolution says in essence that:
"'upon the advise of the State Auditor, that the county home Rule Act took precedence over KRS 134.290 in the commission received from the above taxes . . . . it is asked that the Sheriff of Fulton County be exonerated from the 10% commission collected on the levee and watershed tax and is permitted to continue to collect the said 10% commission.'"
Your question: Is this resolution legal? The answer is "no".
Concerning the levee board's taxes, KRS 266.150(1) states in part that "the property [within the levee protected area] shall be assessed and the tax collected in the same manner and subject to the same requirements as in assessing and collecting the county revenue." (Emphasis added). There is no express mention of the sheriff's commission. Under the above language, however, his commission would be the same as provided for in county tax collections. See Board of Levee Cms'rs v. Johnson, 178 Ky. 287, 199 S.W. 8 (1917). Our opinion is that KRS 134.290 strictly controls the sheriff's commission for collecting levee board taxes. It should be noted that such special district taxes and county taxes would constitute one fund for the purpose of applying the applicable percentages mentioned in KRS 134.290. If the State Auditor advised that the Home Rule statute, KRS 67.083, takes precedence here, we disagree with that view. Actually KRS 67.083 explicitly provides that no county ordinance shall be in conflict with any existing or future constitutional or statutory section. Here clearly a county ordinance providing a sheriff's commission which would be different than that provided in KRS 134.290 would be in direct conflict with the general statute, and, as such, the ordinance would be illegal.
As relates to the sheriff's fee for collecting the taxes of a board of directors of a watershed conservancy district, that is controlled strictly by KRS 262.770. The statute says his fee for collection cannot exceed four percent (4%).
Thus the fiscal court has no authority under KRS 67.083 to change or alter in any respect these two commissions as authorized by statute. Such an ordinance making a change is illegal.
The public officers who made possible any excess commissions for the sheriff could be held personally liable to the county for any excess over and above the statutory amount allowable, where the applicable sheriff does not repay it to the district, subject to the five year statute of limitations. See KRS 413.120(2). Also see KRS 134.310; and Blackwell v. Fidelity & Deposit Co., 163 Ky. 76, 173 S.W. 321 (1915) 322.
The Home Rule statute, KRS 67.083, vests great powers in a fiscal court. However, where the General Assembly has treated this subject of tax collection commissions by general statutes, those statutes preempt that field, and thus they govern. See §§ 59 and 60, Kentucky Constitution, dealing with the principle that no special law can prevail over an applicable general law.