OPINION

JONES, Judge.

This is an appeal from an order entered by the Jefferson Circuit Court dismissing the Appellant's claim for failure to state a claim upon which relief can be granted. For the reasons set forth below, we REVERSE and REMAND.

I. Background

The Appellant, Suzette Sewell-Scheuermann, is a resident and taxpayer of the City of Audubon Park ("the City"), a city of the fifth class located in Jefferson County, Kentucky. On December 27, 2013, the Appellant filed a civil action in Jefferson Circuit Court against the City's mayor, Michael Scalise, and seven members of the City Council: Anne Braun, Al Huber, Jonathan Leachman, Steve Miller, Judy Schwenker, Mark Stevens, and Gary Vogel.

The Appellant's complaint alleged that for fiscal years 2007-2008 beginning on July 1, 2007, to fiscal year 2012-2013, beginning on July 1, 2012, the City Council approved annual ordinances setting a sanitation tax ("the Sanitation Tax") for each year for the purpose of paying for sanitation services for the City, including garbage and trash collection, as well as recycling. Appellant further alleged that for each of these fiscal years, the City Council diverted a portion of the tax revenue generated from the Sanitation Tax and placed such funds in the City's general fund and that the Sanitation Tax revenue was expended on items unrelated to sanitation.1

Appellant charged that the Mayor and the City Council Members who voted to allow the expenditure of the Sanitation Tax revenue on unrelated items were in violation of Section 180 of the Kentucky Constitution, KRS2 92.330, and KRS 92.340. Appellant demanded a judgment against the Mayor and the City Council Members as related to these alleged unauthorized expenditures.

The Mayor and the City Council Members moved to dismiss Appellant's complaint pursuant to CR3 12.02(f) on the basis that it did not state a cause of action upon which relief can be granted. Specifically, they argued that Appellant could not satisfy the requisite element of damages because the diverted funds were applied to the legal obligations of the City, and therefore, the City was not actually harmed. The circuit court agreed with the Appellees. It dismissed Appellant's complaint as follows: "[S]ince the diverted funds were never removed from the City's control and used only to pay the City's financial obligations, the Court does not see how the Plaintiff on behalf of the City, could be granted relief for any harm and damage suffered. . . Therefore the Court will grant Defendants' Motion to Dismiss."

This appeal followed.

II. Standard of Review

"Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo." Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010).

III. Analysis

We begin by examining the constitutional and statutory provisions at issue. Section 180 of the Kentucky Constitution provides:

KRS 92.330 specifically applies Section 180's restrictions to cities of the home rule class (second to sixth class). It further sets forth that such cities are only permitted to levy taxes by ordinance and that the ordinance must set out the purpose of the tax. Specifically, it provides:

KRS 92.340 creates a right of action when a city of the home rule class expends tax revenue for a purpose other than that for which the tax was levied or the license was collected. It states:

The City is a Kentucky city of the fifth class and therefore is covered under KRS 92.330 and 92.340. It is undisputed that the City expended the Sanitation Tax revenue on purposes other than those related to sanitation. It is likewise undisputed that the city attorney did not take action within six months.

Therefore, on its face, it appears that Appellant has satisfied all the elements necessary under KRS 92.340 such that the Appellees should be held to be "jointly and severally liable to the city" for the amount of sanitation tax revenue that they allowed to be expended for matters other than sanitation.

Despite the unambiguous nature of the statute, the circuit court dismissed Appellant's suit on the basis that the Appellees could not be held liable because the City suffered no damage in that the diverted funds were used for the benefit of the City. The circuit court concluded that no damages existed because the diverted funds in question "were never removed from the City's control and used only to pay the City's financial obligations." Yet, Appellant argues this is the very action — using City funds taxed for one purpose and spending these funds for some other purpose — KRS 92.330 and 92.340 prohibit.

We agree with Appellant. KRS 92.330 and KRS 92.340 are clear and unambiguous. They mandate that cities state the purposes for their taxes in their levying ordinances and prohibit revenue generated under the levying ordinances from being used for any purposes other than those set forth in the ordinances. See KRS 92.330. The members of the city legislative body that vote to use any city tax revenue "for a purpose other than that for which the tax was levied or the license fee imposed . . . shall be jointly and severally liable to the city for the amount so expended." See KRS 92.340. We find no indication in the statutory language that the General Assembly intended to exempt liability if the officials use the funds on other city-related liabilities. The plain language of the statute suggests that any use of the funds for a purpose other than the purpose specified in the ordinance is prohibited and results in liability.

Furthermore, it is important to note that a prior statute, KRS 92.360, which would have permitted the City to transfer excess tax revenues to its general fund, was repealed by the General Assembly in 1980.4 The General Assembly's enactment of KRS 92.330 and 92.340 and its repeal of KRS 92.360 provide clear evidence that its intent was for liability to attach even when funds were used by the City as part of its general funds.

Despite the clear language set forth in the statute, the Appellees assert that since the tax revenues were applied to the legal obligations of the City, then Appellant cannot satisfy the requisite element of damages under any set of circumstances. To support their assertion, the Appellees rely heavily on Field v. Stroube, 103 Ky. 114, 44 S.W. 363 (Ky. 1898). First, as already noted, the statutes at issue were not in existence at the time Field was decided. Second, Field is distinguishable because the tax at issue there was levied for a discrete purpose: construction of a new courthouse in Bracken County. When the construction project was completed, money collected for the project was left over. It was impossible to use the levied funds for the intended purpose because that purpose had been fully achieved. When the diversion of the leftover money, "the surplus," was challenged, the Court held "when the object to be attained by the levy has been accomplished, and a surplus remains, it must be treated as a part of the general funds of the county and available for general county purposes." Field, 44 S.W. at 363. Field was distinguished later in Lawrence Cty. v. Lawrence Fiscal Court, 113 S.W. 824, 825 (Ky. 1908), for this very reason. In Lawrence, the court explained that in the case of taxes which repeat each year, leftover revenues generated in one year should be used for that purpose, either in the year levied or some other year. Unless the purpose for which the tax was levied has been extinguished, as was the case in Field, however, "revenue raised for road purposes, for example, cannot be applied to educational purposes; and that a tax levied to build a courthouse cannot be used to repair a bridge[.]" Id.; see also City of Ashland v. Bd. of Educ. of City of Ashland, 149 S.W.2d 728, 729 (Ky. 1941) (distinguishing Field).

Unlike Field, where the construction project was completed, the "object to be attained" by the Sanitation Tax has not been accomplished, and indeed, since it is ongoing and enduring, it is reasonable to conclude that the object to be attained (ongoing waste disposal) has not been finally achieved, nor will it be attained in the reasonable future. If there is an excess after payment of the City's contract for sanitation, the City should use the excess funds for sanitation in the upcoming fiscal year since there is no way to refund a tax that was lawfully levied and collected. Unemployment Comp. Comm'n v. Savage, 140 S.W.2d 1073, 1078 (Ky. 1940) ("[W]e know of no authority for a return of a tax validly levied."). However, we believe it is clear from the statutes governing city taxation that the City may not levy a tax for an ongoing purpose — sanitation — year after year and use the excess for purposes unrelated to sanitation.

"An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation." M'Culloch v. State, 17 U.S. 316, 327, 4 L. Ed. 579 (1819). Appellees' interpretation of the statutes at issue would give them an unlimited ability to levy a tax that bears no proportion to the purpose of the tax and use the excess each tax year after tax year for whatever other purposes they deem necessary. We believe the statutes relied on by Appellant were designed to thwart this very practice.

While Appellees have the power to levy a sanitation tax, they cannot use the revenues from that tax for any other purposes. If there is extra left at the end of the fiscal year, the excess must be used for sanitation in the following fiscal years. If Appellants violate KRS 92.330 and 92.340, they are jointly liable to the City. It is no defense under our current statutory scheme that the money they diverted was used to benefit the City in some other way.5

The statutes serve as a check for the very conduct that appears to have occurred in this case, i.e., repeatedly levying a tax at a higher rate than is necessary for its stated purpose with the intent to use the extra funds for other purposes. Because a tax that has been collected under a valid ordinance cannot be refunded, the only recourse available is to require those who participated in this conduct to refund the money to the City so that it can be used in the future for the purpose for which it was collected. While the City may not have been "damaged" in the traditional sense, it is apparent that the statutes were violated. Our General Assembly has defined the statutory measure of damages for a violation of the statutes. The circuit court was without the statutory authority to carve out an exception to that measure of damage. Neither the statute nor the case law support exempting the Appellees under these facts. The City was damaged under the plain meaning of KRS 92.340 and the remedy for the violation is found within the statute, requiring Appellees to repay the City.

IV. CONCLUSION

For these reasons, the order of the Jefferson Circuit Court is REVERSED and this matter REMANDED to the trial court for additional proceedings consistent with this Opinion.

ALL CONCUR.