U. S. Fidelity & Guaranty Co. v. Board of Education of Somerset Pub. Grad. School

Opinion of the court by JUDGE PAYNTE5R ‘Reversing. The appellee, board of education of Somerset public graded schools, was created by a special act of the Legislature in 1883 (3 Acts 1887-88, p. 509, c. 1273), which act was amended (volume 1, p. 446, r. 250, Acts 1889-90). By virtue of these acts of the Legislature, it levied an ad valorem tax of $1 upon each $100 of property in the school district, and a poll tax of $2. The district; is comprised of the territory within —some outside of — the corporate limits of the city of Somerset. The levies were made for the years 1899, 1900 and 1901. Hiram H. Gragg was appointed tax collector, and was required to give a bond each year as such, which he did, with the appellant as surety. He failed to account to the appellee [359] for all the taxes for the years in question, and made settlements showing the amount due for each year: On his failing to pay over these sums, this action was instituted on the several bonds to recover the balances shown to be due from him. The appellant admits the execution of the bonds, but seeks to avoid liability thereon for several reasons, some of which will be made to appear in this opinion. It is urged that the levy for the year of 1899 is invalid, because it does not state the purpose for which it was made, and that under the doctrine, of Greenwell v. Commonwealth, 78 Ky., 322, Whaley v. Commonwealth, 110 Ky., 154, 61 S. W., 35, 23 Ky. Law Rep., 1292, and Commonwealth v. Stone, 71 S. W., 428, 24 Ky. Law Rep., 1297, it is not liable for the taxes collected and such as were not collected. There is no serious objection to the levies, except for the year of 1899. The order making the levy for the year of 1899 is as follows: “On motion, the levy for 1899 was fixed at $1.00 on every $100.00 worth of property, and $2.00 for each poll.” The order does not state the purpose for which the levy is made— not even that it is for school purposes. Section 180 of the Constitution provides: . . Every act enacted by the General Assembly, and every ordinance and resolution passed by any county, city, town, or municipal board or local legislative body, levying a tax, shall specify distinctly the purpose for which said tax is levied'. . . .” The appellee was a local legislative body authorized to levy the tax. The court, in City of Somerset v. Somerset Banking Co., 109 Ky., 549, 60 S. W., 5, 22 Ky. Law Rep., 1132, had under consideration orders making levies substantially the same as the one here under consideration, and held them void. The order in question is void, because it is in disregard of section 180 of the Constitution. In the case of Pulaski County v. Watson, 106 Ky., 500, 50 S. W., 861, 21 Ky. Law Rep., 61, the order stated the purpose for which the tax was levied; hence [360] that case does not support the position of counsel for appellee. If the order is void, then the collector had no authority to collect the tax, neither had the board the right to accept the bond in question; and for that reason no recovery can be had thereon (bond for 1899). This conclusion is supported by Greenwell v. Commonwealth, Commonwealth v. Stone, and Whaley v. Commonwealth. By section 3, vol. 1, p. 447, c. 250, of the Acts of 1889-90, the board has the power to adopt the assessment of the assessor of the city of Somerset as to the property in the city limits belonging to all white persons, and it is made the duty of the assessor of the district to assess the property in the district outside of the city of Somerset. There is a board of equalization of the city to supervise the work of its assessor. By section 14, vol. 3, Acts 1887-88, p. 514, c. 1273, the board of education is authorized to sit as a board of supervisors for the purpose of supervising the tax list. No taxpayer is here complaining that the property was not properly assessed, or that the assessment was not properly supervised or equalized. The record fails to show that the law was not ful'ly complied with. Section 14 of the Acts of 1888 provides that “the collector shall be under the same responsibility as sheriffs in the collection of the State revenue,” and that his surety shall be liable on- his bond “for all money so collected.” These two clauses must be construed together, to determine the liability of the collector and his surety. The bond which he gave, and which the appellant signed as surety, d'oes not impose any greater liability upon the surety than is contemplated by law. It is not only the duty of the sheriff' to pay over the money which he collects, but to collect all valid tax receipts placed in his hands for collection. We therefore are of the opinion that the bonds executed by the appellant did [361] not purport to impose any greater burden upon the appellant tban is authorized by the statute. The appellant is liable not only for the taxes collected, but those which could have been. It is insisted that the special acts under which the graded school was organized were repealed by the charters of cities of the fourth class. In this view we do not concur. We have examined the cases of Mayor of Eminence v. Wilson, 103 Ky., 326, 45 S. W., 81, 20 Ky. Law Rep., 29; Roberts v. Clay City, 102 Ky., 88, 42 S. W., 909, 19 Ky. Law Rep., 1047; Hickman College v. Trustees, 111 Ky., 944, 65 S. W., 20, 23 Ky. Law Rep., 1272; Trustees v. Vanceburg, 46 S. W., 1, 20 Ky. Law Rep., 369; Board of Education of Elizabethtown v. Morris, 71 S. W., 654, 24 Ky. Law Rep., 1422; and Board of Education of Somerset v. Trustees, 35 S. W., 549, 18 Ky. Law Rep., 103 — and find that they do not support a different conclusion. In some of the cases the court held that the charters of cities of the fifth class did not repeal the provisions of the special acts giving the graded schools the money collected for liquor licenses', because the charter provided that such sums should go into the general fund of the municipalities; hence there was a conflict. The court recognized that special acts establishing graded schools in cities of the fifth class were still in force. The other cases referred to hold that the special acts are still in force. Somerset is a. city of the fourth class. Under the charters of cities of the fourth class, it is optional with the cities of that class to maintain a system of public schools. The city of Somerset does not seem to have attempted to establish a system of public schools. The appellee is entitled to recover on the bonds for the years of 1900 and 1901, and if there is no order except the one in question, making the levy for 1S99, it is not entitled to recover on the bond executed for that year. [362] The judgment is reversed for proceedings consistent with, this opinion. Petition by appellant for extension of opinion overruled.