Board of Education of Independent School Dist. No. 2 v. Turner County

WHITING, P. J. This case is in all respects similar to the case of City of Centerville v. Turner County, 23 S. D. 424, 122 N. W. 350, 25 S. D. 300, 126 N. W. 605, with the exception that in this case it was the school tax which had been collected by the county treasurer and 4 per cent, thereof retained as commission. The appellant urges that, even if the treasurer was unjustified under the statute in retaining the 4 per cent, commission in the collection of city taxes, yet he was entitled to retain such commission from school taxes. We can find nothing to justify such distinction, and it seems clear that this case is controlled in all things by the opinion in the Centerville Case. It is therefore the opinion of this court that this cause should be remanded to the circuit court, and such court directed to ascertain the amount of taxes wrongfully withheld during the six years prior to the commencement of this action, and award judgment for the same with interest and costs. As so modified, the said judgment is affirmed, appellant being awarded costs on this appeal. HANEY, J., dissenting. SMITH, J., taking no part in this decision.