Opinion No. (1978)

REQUESTED BY: Dear Senator:

You have asked whether a local school board may levy .04 of a mill over the authorized mill levy under section 79-548.01 to allow for payment of the collection fee assessed by the county for purposes of collecting the taxes levied by the school district. You state that you wish to make clear any problems that might exist in this area during this session.

Section 79-548.01 authorizes boards of education to establish special funds for the purposes of acquiring sites for school buildings and other purposes. The levy to raise money for this fund is not to exceed 7 mills. It is clear that taxing bodies are restricted to levying taxes by statute or Constitution to specified limits in most cases. Here, for the purpose of section 79-548.01, R.R.S. 1943, a school board in a Class III, IV, V or VI school district may levy no more than 4 mills for this purpose. Notwithstanding the fact that the county is entitled to a collection fee for purposes of collecting the tax levied by the school district, no authority exists in the school board to levy an excess over 4 mills for payment of that sum.

Any levy over 4 mills would be void. The Nebraska Supreme Court since at least 1902 has pointed out that taxes levied in excess of the constitutional limit are illegal and void. See Dakota County v. Chicago, St. P., M. O. R.Co., 63 Neb. 405, 88 N.W. 663 (1902). It is also clear underUnion Pacific Railroad Co. v. Howard County, 66 Neb. 663,92 N.W. 579 (1902), that the void portion is only that over the levy authorized by statute.

It would appear to us that no statutory clarification is necessary in that any levy over 4 mills would be in violation of the statutory authority of the school board and void.