Commonwealth v. Mackoy

[65] OPINION op the CouRT by Judge Settle — Reversing. This is an appeal from a judgment of the Mason Circuit Court, sustaining a demurrer to and dismissing the petition in an action brought by the Board of Education of Mason County, on the relation of the Commonwealth of Kentucky, to recover of the appellee, W. IT. Mackoy, former sheriff of the county, and the sureties in his bond, certain sums alleged to have been wrongfully retained by him as commissions out of school taxes collected by him as sheriff in the Mayslick school subdis-trict, for the years 1910, 1911, 1912, and 1913.' There was not in this case; as in that of Commonwealth for Use, Etc. v. James Mackey, Etc., this day decided, a plea of settlement made with the fiscal court, but in other respects the questions raised are the same that were involved in that case. There is not as insisted -for appellees, anything in section 4426a, subsection 9, Kentucky Statutes, allowing the sheriff commissions to be paid out of a school tax collected by him in a subdistrict. In such case the sheriff' must look for his compensation to the general expense fund of the county, and is not entitled to retain any part of the school levy as compensation for its collection. We so held in Hall v. Ballard County, 140 Ky., 84; Hill v. Board of Education of Lincoln Co., 140 Ky., 259; Henry County Board of Education v. Jones, Ex-Sheriff, 140 Ky., 544, and these cases and that of Commonwealth of Kentucky for Use, Etc. v. James Mackey, Etc., supra, being conclusive of this and other questions raised in this case, it follows that the lower court erred in sustaining the demurrer to the petition. For the reasons indicated the judgment is reversed and cause remanded, with directions to the circuit court to overrule the demurrer and for further proceedings consistent with the opinion.