Collins v. Henderson, &C.
| Decision Date | 07 April 1874 |
| Parties | Collins v. Henderson, &c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM FRANKLIN CIRCUIT COURT.
J. M. COLLINS, R. H. COLLINS, CARLISLE & FOOT, GEO. C. DRANE, For Appellant.
JOHN RODMAN, Attorney-General, WILLIAM L. JETT, For Appellees.
JUDGE COFER DELIVERED THE OPINION OF THE COURT.
The first section of an act of the General Assembly entitled "An act directing the purchase of Collins's Historical Sketches of Kentucky," which act became a law on the 21st March, 1871, directed the superintendent of public instruction to purchase of the appellant, "Richard H. Collins, for the use of this commonwealth, such number of copies, at the price of four dollars each of his new and enlarged edition of Judge Collins's Historical Sketches of Kentucky as shall be sufficient to supply one copy thereof to each common-school district in this state." The second section provided that upon receipt of the books the superintendent should certify to the auditor of public accounts the number received, and directed the auditor to draw his warrant upon the treasury for the price of the same, payable, one half out of the proceeds of the fifteen-cent tax for school purposes levied in 1871, and the other half out of the same tax collected in 1872.
To this section was appended a proviso directing "that if, at the annual election for school trustees, on the first Saturday in April, 1871, any school district should by vote decide not to purchase said book, and should certify said vote officially through the county commissioner to the superintendent of public instruction, then said superintendent shall not purchase a copy of said book for said district."
The same section made it the duty of the superintendent of public instruction to notify the commissioners of common schools of the various counties of the passage of the act, and the commissioners were required to notify the trustees of school districts in their respective counties previous to the first Saturday in April.
The superintendent having withheld from the several school districts in Franklin County, where no vote was taken on the question of purchasing the book, the sum of two dollars each out of their share of the school fund for 1871, and a like amount for the year 1872, to pay for one copy of the book for each of the districts in that county, W. L. Jett, the school commissioner for the county, brought his action in the Franklin Circuit Court for a mandamus to compel the superintendent to countersign his draft for the sums so withheld.
Desiring an authoritative settlement of the question raised by the commissioner for Franklin County, the superintendent brought a suit in equity in the same court against Richard H. Collins and Jett, in which he called upon them to interplead and have the question whether the money should be retained to pay for the books determined by the court.
The superintendent set forth the act, and alleged that it did not go into effect until the 21st of March; that the first Saturday in April was the first day of the month; that it required two days after its passage to prepare and mail to the commissioners of the various counties copies of the act, thus allowing only nine days within which to give notice to the commissioners, and through them to the trustees of the districts; that the whole number of districts in the state at that time was 5,430; that out of this number only 626 voted on the question, and that of those voting all but 33 voted against purchasing the book; and that the 4,804 districts not voting failed to do so for want of sufficient notice of the passage of the act.
He also alleged that the object of the act was to take from the common-school fund about $20,000 for the purchase of a single book, in violation of the state constitution; that the book was in no sense a school-book fit for the use of common schools; and that the General Assembly had no power to buy a book of any kind to be paid for out of the school fund.
By consent of the parties the actions of Jett for a mandamus and of the superintendent against Collins and Jett were consolidated, and the petition of Jett was taken as his answer to the petition of the superintendent, and also as a cross-petition against the superintendent and Collins. Collins was made a defendant to the petition of Jett, and demurred to both petitions; and his demurrer having been overruled, he elected to stand by it; and judgment having been rendered declaring so much of the act as directed payment for the books to be made out of the school fund to be unconstitutional, and awarding a mandamus against the superintendent, as prayed for, Collins has appealed to this court for a reversal of that judgment.
So much of the act as directs the books to be paid for out of the fifteen-cent tax levied and collected for school purposes is claimed to be unconstitutional upon three grounds, viz.:
1. That it is in violation of section 37 of article 2 of the Constitution, which provides that "no law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title."
2. That it was the evident purpose of the legislature to allow a vote in each district upon the question of purchasing the book; and as it so happened that this could not be had, the act is void for the want of the assent of the voters of the several districts.
3. That the act is in violation of section 1 of article 11 of the Constitution.
We will consider these questions in the order in which they have been stated.
1. The act relates to a single subject, and that is clearly expressed in the title. The particular manner in which the object of an act is to be accomplished need not, and indeed can not, be expressed in the title. If the title indicates with clearness the subject about to be legislated upon, and the act itself is confined to that subject, that is all the constitution requires. The act directs the purchase of a book, and that subject is sufficiently expressed in the title, and to designate the fund, out of which it was to be paid for, was directly connected with that subject.
2. Although the act seems to have contemplated a vote by the people of each district, it did not make the purchase depend upon such vote being had, but reversed the usual order in such cases, and directed a copy to be purchased for all districts failing to vote against it.
That it was not intended to make the duty of the superintendent to buy a copy for each district depend upon the vote of the district is not only manifested by the anomalous provisions of the act itself, but by the further fact, not appearing on the face of the law, that in nearly or quite all the cities and in many of the towns in the state no election for trustees was then held on the first Saturday in April.
3. The third ground of objection is more formidable.
Section 1 of article 11 of the present Constitution, after enumerating the several items constituting the common school fund, declares that said sums,
The tax out of the proceeds of which the books are directed to be paid for was levied under an act entitled, "An act imposing an additional tax of fifteen cents for the purpose of increasing the common-school fund," and any sum produced thereby comes directly within the constitutional provision, and is placed beyond the power of the legislature except to be appropriated in aid of common schools.
That the people, who by a popular vote consented to the tax, and the legislature, by which it was imposed, intended its proceeds to fall under the protection of the constitution as a part of the school fund is not only expressed in the title both of the act submitting the question to a vote and that levying the tax, but in the body of both acts, and that the proceeds of such tax is to be so treated is not questioned.
The sole question presented for decision, then, is whether the appropriation of a part of the money produced by that tax, and dedicated by the constitution to the school fund, to buy a copy of the appellant's book for each school district which failed to vote against such purchase, is in aid of common schools within the meaning of the constitution.
It is insisted for the appellant that the General Assembly, possessing the whole legislative power of the government, may appropriate the revenue of the school fund, including the proceeds of taxes levied for educational purposes, for such objects as it may see proper, provided only that they be not clearly of such a character as will not be in any sense or in any degree in aid of common schools, and that as the legislature has by enacting this provision of the statute decided that the purchase of the appellant's book for the use of the several common schools in the state would be in aid of such schools, the courts can not interfere to defeat the legislative will unless they can decide that the purchase of the book is in no way in aid of common schools.
That as the presumption must always be in favor of the validity of legislative enactments until the contrary is clearly shown, that part of the act in question making the appropriation is valid not only because the legislature has declared that such appropriation is in aid of common schools, but because it is so in fact.
We recognize to its fullest extent the rule that all doubts existing in the mind of the court as to the constitutionality of an act of the legislature must be resolved in favor of its validity, but we do not understand this rule to require that words must be found in the constitution which in...
To continue reading
Request your trial