Request By:
Mr. William Wiley
Committee Administrator
Interim Joint Committee on
Counties & Special Districts
Legislative Research Commission
State Capitol Building
Frankfort, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise the question as to whether or not a sheriff can invest tax money before it is turned over to the applicable taxing authority.
You say that OAG 78-491 advises that sheriffs cannot invest such tax money, while OAG 78-9 advises that they can make such investments. Mention was also made of OAG 70-68, but it relates to a depository for the sheriff's tax collections approved by fiscal court pursuant to KRS 62.080.
In OAG 78-9 the statutes dealing with state, school, and county tax collections by the sheriff and his periodic payment of the tax money to the taxing authorities were mentioned. (See KRS 134.320, 160.510, and 134.300). The opinion also contains the statement that "For the period for which he collects the tax and before he makes the report and remits the money collected there is apparently no statutory bar to the sheriff depositing the money collected in an interest bearing account in a local bank."
In the later opinion, OAG 78-491, we concluded, in dealing with the above mentioned tax collection payments to taxing authorities (KRS 134.320, 160.510, and 134.300), that those statutes do not mention the lending or investment of such tax money. The powers of such officers are limited to those conferred expressly by statute or which exist by necessary and fair implication. Blue Boar Cafeteria Co. v. Hachett, 312 Ky. 288, 227 S.W.2d 199 (1950) 201. In the tax collection process the sheriff must follow the statutes as to his handling of the money. Thus we concluded, as we conclude now, that the sheriff has no statutory authority to invest such tax money during the period prior to his turning the money over to the appropriate taxing authority.
KRS 61.190 prohibits the sheriff from receiving any interest himself arising from the investment of such tax money. Thus any interest arising from such invested tax money could only accrue to the taxing authority, even if investment were authorized.
The remaining question is whether there is any statutory basis for the sheriff's investing such tax money, with the interest going to the applicable taxing authority. Since there is a total absence of statutory treatment of that subject, we conclude that the sheriff under present statutes is under no duty to so invest such collected taxes. He has no affirmative responsibility in that regard. The court, in Conner v. Nunn, Ky., 455 S.W.2d 554 (1970) 555, pointed out that "In the absence of a legal duty which an officer is required to perform, or a right to have such duty performed, an officer cannot be compelled to act." Further, we are of the opinion that there is no statutory authority for the sheriff's entering into a written agreement with the taxing authorities for his investment of tax money on a short term basis.
We are saying that the sheriff's investment of such funds would require an express or explicit statute. See § 185, Kentucky Constitution, which provides that the General Assembly shall make provision by law for the payment of the interest on the school fund. It is written in Clark County Const. Co. v. State Highway Com'n, 248 Ky. 158, 58 S.W.2d 388 (1933) 390, 391, that:
"Most, if not all jurisdictions, give recognition to the general rule that where a statute directs the manner of making public contracts and specifically prescribes the method of the exercise of the powers of public bodies or officials with respect thereto, such statute is the measure of their authority and any acts beyond the clearly defined limits fixed by the legislature are void . . ."
We therefore conclude that there is no statutory authority for a sheriff to invest tax money. OAG 78-9 is modified accordingly.