Board Education Bowling Green v. Simmons
| Citation | 245 Ky. 493 |
| Parties | Board of Education of Bowling Green v. Simmons. |
| Decision Date | 25 October 1932 |
| Court | United States State Supreme Court (Kentucky) |
2. Municipal Corporations. — City board of education is quasi corporation and governmental agency.
3. Municipal Corporations. — City board of education may exercise only those powers expressly conferred by statute and those reasonably incident thereto.
4. Schools and School Districts. — City school board's appropriation for purpose not expressly named in statute must be reasonably germane to interest of schools (Ky. Stats., secs. 3464, 3474, 3478; Constitution, sec. 184).
5. Schools and School Districts. — School board held to have power to create position of school nurse and teacher of health and physical education and make appropriation therefor, if in its sound discretion this was for interest of schools (Ky. Stats., secs. 3464, 3474, 3478; Constitution, sec. 184).
6. Evidence. — Presumption favors validity of city school board's order creating position of school nurse (Ky. Stats., secs. 3464, 3474, 3478; Constitution, secs. 184).
To authorize court's interference with such order, it must appear that board exceeded its statutory power or abused its sound discretion when it determined that it was to the interest of the schools of the city to create the position and make the appropriation and the contract of employment and did so.
7. Schools and School Districts. — Creation by board of education of position of nurse and employment to fill such position held for interests of schools of city within Statutes and Constitution (Ky. Stats., secs. 3464, 3474, 3478; Constitution, sec. 184).
8. Schools and School Districts. — Statute authorizing county health officers to visit schools and inspect premises held not limitation of or substitute for school board's power to appropriate school funds under statute (Ky. Stats., secs. 2054a-13, 3464, 3474, 3478; Constitution, secs. 184).
9. Schools and School Districts. — City school board cannot itself raise revenue to defray school expenses, but may make appropriation out of school funds in its hands not otherwise appropriated by law (Ky. Stats., secs. 3464, 3474, 3478).
10. Schools and School Districts. — Statutes controlling qualifications of teachers held inapplicable to position of school nurse and teacher of health and physical education.
Appeal from Warren Circuit Court.
GEORGE W. MEUTH for appellant.
STOUT & HERDMAN for appellee.
Reversing.
The city of Bowling Green, Ky., is a city of the third class. Section 3462, Ky. Stats., provides for the maintenance in this class of cities, a system of public schools at which all the children residing within the city between the ages of 6 and 20 may be taught at public expense.
Section 3469, Ky. Stats., imposes the duty on the board of education of the city to ascertain approximately the certain amount of money necessary to be used to defray the expenses of maintaining the schools, improving and constructing buildings, etc., and any liquidation of the liabilities during the fiscal year, and report the same together with the estimated amount to be received from the common schools and the interest on bonds, notes, etc., to the auditor or clerk of the city, within thirty days prior to the time prescribed for the levy of taxes to be made under the charter. It is the duty of the auditor or clerk of the city to report the same to the general council of the city, or the commissioners, if the city is operating under the commission form of government. Then it becomes the duty of the general council, or the commissioners, to make the necessary levy and collect the taxes to provide suitable buildings and to defray the general expenses necessary for school purposes, provided the levy for any one year shall not exceed $1.50 on each $100 of the value of taxable property within the city. The taxes when collected, together with penalties and accrued interest which may have been collected on same, are required to be paid to the board of education of the city or its authorized agent. Section 3474 confers upon the board of education the exclusive control of all school funds of the city, from whatever source the same may be derived, including the pro rata from the common school fund of the state. Section 3474 further provides:
"It (the board of education) shall have power to expend all moneys in the interest of public schools of the city."
Section 3478 vests in the board authority to establish and maintain a public school library; to purchase text-books for indigent children of the city, out of any funds coming into its hands; and "otherwise expend such moneys in the interest of the public schools." It is written in section 4448, Ky. Stats.:
"When any family shall have any infectious or contagious disease, no member of such family shall attend any school until the trustees thereof shall allow them to do so; and during the prevalence * * * of dangerous epidemics the trustees shall order the school closed."
According to the census of 1930, the population of Bowling Green was 12,348. The school census of 1931 shows within the city 2,788 children of school age, or eligible to attend the city schools; 2,272 enrolled and actually attending, 1,506 of these in the primary grades, 400 in junior high school, and 366 in the senior high school. The board of education by an order attempted to create the position of nurse and teacher of health and physical education and to fix the salary thereof at $83.33 per month. Miss Lou Willa Honaker, in accordance with the order, was appointed for a period of one year; she accepted and entered into a contract with the board of education, conditioned that if her service proved satisfactory, it was to continue for one year. She was directed and instructed by the order to co-operate with the county board of health in the performance of her duties which, as set out in the order, were to inspect the children in the public schools of the city, their physical health and conditions, and to confer with their parents "confidentially in regard to the physical or other defects that interfered or threatened to interfere with their school work."
She was not at the time the holder of a certificate authorizing and qualifying her to teach in the common schools; her qualifications were those of a nurse and teacher of health and physical education.
Certain taxpayers filed this action in the Warren circuit court to have the order creating the position, the making the contract of employment, and the fixing the salary declared illegal and void, and to enjoin the board's payment of the school funds "for her service." Judgment was entered in conformity to the prayer of the petition, from which the board of education presents this appeal.
Evidence was heard on the trial in the circuit court, but, to dispose of the vital issues correctly, we do not deem it necessary to consider the evidence heard touching the board's adoption of the order.
The order recites section 4369e-3, Ky. Stats., as the statutory authority of the board to create the position, make the contract of employment, and pay the salary.
It is vigorously and earnestly attacked because it so recites section 4369e-3. It is very plain that this section does not confer such authority. However, if other sections of the Statutes confer upon the board the required power, an incorrect reference to section 4369e-3 in no wise affected its validity.
It is the contention of the taxpayers that the order is within the inhibitions of section 184 of the Constitution. To sustain their insistence, Collins v. Henderson, 11 Bush, 74, and Board of Education of Covington v. Board of Trustees of Public Library, 113 Ky. 234, 68 S.W. 10, 24 Ky. Law Rep. 98, and Wilson v. Board of Education, 226 Ky. 476, 11 S.W. (2d) 143, are cited and relied on with earnestness and force. The pronouncement of these cases was predicated on the theory that the expenditures of the school funds therein authorized by legislative enactments to be contracted and expended were not appropriations "for the purpose of sustaining the system of common schools," "nor to the interest of the common school."
The clear intent of the act involved in Collins v. Henderson was to promote the sales of the product of Collins — a history — and in which the common schools were not interested, more than in any other text-book covering the same subject.
In Board of Education of Covington v. Board of Trustees of Public Library, the act undertook to authorize an appropriation by the general council of an appropriation of taxes, levied and collected for school purposes, for a public library, in which the school children had no more interest or right than any other reading member of the public.
The case of Wilson v. Board of Education involved a contract for the payment of a proportion of the cost of constructing a street which was to be used by the school pupils, only as members of the traveling public.
The contracts involved in those cases were plainly ultra vires, or beyond the constitutional power of the Legislature to authorize them, and not within the legal authority of the agency intrusted with the control and expenditure of school funds to appropriate them for the purposes to which they were applied.
The quoted clauses of sections 3474 and 3478 grant plenary power to the board of education to appropriate the school funds of the city for whatsoever purpose that may be deemed by it, in its sound discretion, to be for the interest of the public schools. The power so conferred upon it is abridged by section 3464, Ky. Stats., to the extent that it declares the school funds shall be "dedicated to the use of public schools." In its intendment,...
To continue reading
Request your trial