Fiscal Court of Pendleton County v. Pendleton County Bd. of Educ.

• Citation: 240 Ky. 589,42 S.W.2d 885
• Parties: FISCAL COURT OF PENDLETON COUNTY v. PENDLETON COUNTY BOARD OF EDUCATION.
• Decision Date: 20 October 1931
• Court: Court of Appeals of Kentucky

42 S.W.2d 885

240 Ky. 589

FISCAL COURT OF PENDLETON COUNTY v. PENDLETON COUNTY BOARD OF EDUCATION.

Court of Appeals of Kentucky

October 20, 1931

Appeal from Circuit Court, Pendleton County.

Suit by the Pendleton County Board of Education against the Fiscal Court of Pendleton County. From a mandatory order adverse to defendant, it appeals.

Affirmed.

John E Shepard, of Covington, and H. B. Best, of Falmouth, for appellant.

L. P Fryer, of Butler, and John P. McCartney, of Flemingsburg, for appellee.

STANLEY C.

This suit was instituted by the county board of Education of Pendleton county against the fiscal court of that county to compel it to levy a tax rate of 75 cents per $100 for school purposes for the fiscal year beginning July 1, 1931, in accordance with a budget which had been submitted to it. The fiscal court disregarded the recommendation and demand of the board of education, and made a levy of 50 cents. The appeal is from a mandatory order entered by the circuit court directing the fiscal court and its members to make the levy as asked by the board of education.

The legal procedure was proper, and the power of the court to require the fiscal court to comply with the demands of the school board, if made in accordance with the statutes, cannot be denied. Board of Education of Marshall County v Fiscal Court of Marshall County, 229 Ky. 774, 17 S.W.2d 1009; McCreary County Fiscal Court v. McCreary County Board of Education, 236 Ky. 149, 32 S.W.2d 741. A substituted budget was submitted, and it is the one with which we must deal. This budget contained an estimate of expenses necessary for the operation of the school at Butler, in Pendleton county, and an item of $5,000 to apply on the payment of a reported indebtedness of $10,000. These two items are submitted as being unauthorized and illegal, and therefore justified the fiscal court in rejecting the budget, or rather in reducing the levy to 50 cents, which it is shown had been the tax during the previous years, but for school terms of seven instead of eight months. It is also argued that the petition was demurrable in that the budget, as submitted to the fiscal court, was illegal, as it was not alleged to have been approved by the state superintendent of public instruction, and its adoption by the county board was not alleged; also an insufficient averment as to the taking over of the Butler graded school, the expenses of which are included.

Prompted by suggestions and criticisms in appellant's brief of the action of the county board, it may be observed before entering upon a consideration of the points involved that the courts are not concerned with the wisdom or lack of wisdom of the policy adopted or pursued by the board of education in the management of the schools. We are to determine only whether it is within the purview of the statutes. Nor are we concerned with the wisdom of the laws themselves.

The text of the petition is not as full and definite as good pleading perhaps demands, but the budget, alleged to have been submitted to the fiscal court, is set out in haec verba, and it shows on its face that it was prepared in accordance with the statutes, and that the essential requirements were met. Section 4399a-8, Statutes. A copy of the budget was also filed with and made a part of the petition by reference. The rule expressed generally that an exhibit will not make a bad petition good is not applicable. Here it is set forth in the pleading, and is a portion of its body. The petition states whatever it states. Gordon v. Mames, 10 Ky. Op. 175; 49 C.J. 616. It is also a recognized rule that while an exhibit cannot supply omissions, it may cure or aid a defective allegation. Lowe v. Broad Bottom Mining Co., 194 Ky. 88, 238 S.W. 192. Of special application see Howard v. Howard, 236 Ky. 557, 33 S.W.2d 635.

The petition alleged that an original budget, also copied in full, had been submitted to the defendant with the request for a 75 cents levy, and that subsequent to its preparation "the plaintiff took over the Butler Graded High School district in said county as a part of the school system of said county, and through an oversight and mistake failed to make a correction of said budget including said district before filing same, as aforesaid, on April 7, 1931." This supplemental budget was alleged to include the Butler district expenses, and to have been filed as provided by the statute. Criticism is leveled at this allegation with respect to the Butler school, as being indefinite and as a conclusion of the pleader. Ordinarily a demurrer will not lie because of indefiniteness in the statement of facts. Daniel v. Daniel, 166 Ky. 182, 179 S.W. 5. The averment was not material to the issue, although it became the basis of an attack upon validity of the merger of that school into the county public school system.

Considering the petition as a whole, and judgment having been rendered thereon, we cannot sustain appellant's contention on this point.

As stated, justification of the act of the fiscal court, and the claim of subsequent error on the part of the circuit court in requiring that body to make the levy asked for, is sought to be established upon the ground that the budget contained an estimate of expenses necessary to carry on the school at Butler which, as appellant contends, was a separate district as the attempted annexation to or merger with the county school system was void and ineffectual. Section 4475a-1, of the Statutes, provides that two districts may be combined simply "by concurrent action" of the two boards when it is "desirable in order to provide more economical or efficient administration of schools." In this instance, there was submitted to the county board, as disclosed by its minutes, a communication signed by the chairman and secretary of the Butler graded school board certifying that at a regular meeting held by it on April 13, 1931, amending and ratifying a previous resolution adopted at a special meeting, it was unanimously resolved, "After careful deliberation and due consideration" to enter the school into the Pendleton County Public School system, "with the understanding that the graded school board should be allowed to retain the management of the school during the remainder of that school year ending June 30, 1931," and after that date the control of the school should pass to the Pendleton county board of education. Application to the county board for entrance into the county system was accordingly incorporated in the communication. The...