Request By:
Mr. James Secrest
Allen County Attorney
Box 35
210 W. Main Street
Scottsville, Kentucky 42164-0035
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question concerns the fees of the sheriff and county clerk, as the collectors of school taxes.
KRS 160.500(4), as amended in 1982, and effective January 1, 1984, reads:
"The county clerk shall be the ad valorem tax collector for motor vehicle taxes for county and independent school districts, and shall be allowed a commission of two percent (2%) of all such monies collected for any school district. "
KRS 134.805(3), effective July 13, 1984, provides:
"The county clerk shall be allowed a commission of four percent (4%) of the school district taxes collected."
First, you ask what is the clerk's fee for collecting school ad valorem taxes.
In
Dickson v. Jefferson County Board of Education, 311 Ky. 781, 225 S.W.2d 672 (1950), the old Court of Appeals held that where a fee of one percent (1%) is amply sufficient to cover the costs of collecting the local school tax, the designated flat statutory fee of four percent (4%) would be in excess of the actual cost of collection, and thus violated §§ 180 and 184 of the Kentucky Constitution as a diversion of school funds. Sections 180 and 184 clearly provide that school tax revenue can be spent for only school purposes. In Dickson v. Jefferson County Board of Education, above, the Court held in effect that three percent (3%) of the statutory flat rate of four percent (4%) was in excess of the cost of collection and thus constituted an unlawful diversion of school money.
The Kentucky Appellate Court has consistently followed the above described principle in holding that a sheriff cannot withhold school funds in excess of the reasonable cost of collection. See
Board of Education of Carter County v. Greenhill, Ky., 291 S.W.2d 36 (1956). The practical import of this is that the sheriff, in collecting school taxes, was required to keep accurate and complete records of his expenses incurred in the collection of school taxes. See
Davie v. Bd. of Ed. of Hickman City Schools, Ky., 249 S.W.2d 954 (1952). See also OAG 62-335, containing a schedule reflecting the application of the "cost" principle.
The clerk's fee for collecting school ad valorem taxes on motor vehicles is the reasonable cost of collecting such taxes, not to exceed four percent (4%). Since the sheriff's fee for collecting school taxes (other than on motor vehicles) is the reasonable cost of collection, not exceeding four percent (4%), the insertion of a two percent (2%) maximum in KRS 160.500(4) was probably inadvertent, but, in any event, was inconsistent with the prior statutory history of the sheriff's collection of school taxes. In the 1984 session, KRS 134.805(3) was amended to provide a clerk's fee of four percent (4%) instead of two percent (2%). Thus the later legislation governs.
Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949). Giving the sheriff a maximum of four percent (4%) and the county clerk two percent (2%) would constitute arbitrary action. See § 2, Kentucky Constitution. The constitutional application of KRS 134.805(3) means that the clerk is entitled to the reasonable cost of collection, not to exceed four percent (4%).
Although the sheriff is now by statute, KRS 160.500(1), given a fee, for collecting school taxes, equal to his cost of collecting school taxes, not less than one and one-half percent (1 1/2%) and not to exceed four percent (4%), your school superintendent believes that, since a county clerk is given a four percent (4%) fee for collecting school taxes on motor vehicles, the sheriff should collect four percent (4%) for collecting ad valorem school taxes. Your advice is correct. Neither the sheriff nor the county clerk can derive a fee for collecting school taxes which exceeds the cost of collecting the taxes. The constitutional principle involved in §§ 180 and 184 of the Kentucky Constitution, as interpreted by the Court of Appeals, applies equally to any officer given the statutory responsibility of collecting school taxes.