Board of Educ. of Calloway County v. Talbott

• Decision Date: 11 June 1935
• Citation: 86 S.W.2d 1059,261 Ky. 66
• Parties: BOARD OF EDUCATION OF CALLOWAY COUNTY et al. v. TALBOTT, Auditor of Public Accounts.
• Court: Kentucky Court of Appeals

86 S.W.2d 1059

261 Ky. 66

BOARD OF EDUCATION OF CALLOWAY COUNTY et al. v. TALBOTT, Auditor of Public Accounts.

Court of Appeals of Kentucky

June 11, 1935

Rehearing Denied Nov. 26, 1935.

Appeal from Circuit Court, Franklin County.

Action by the Board of Education of Calloway County, for itself, and others, against J. Dan Talbott, Auditor of Public Accounts. From an adverse judgment, plaintiffs appeal.

Affirmed.

Richard Priest Dietzman, of Louisville, Webb & Webb, of Mayfield, and James Garnett Jr., of Louisville, for appellants.

Bailey P. Wootton, Atty. Gen., and William R. Attkisson, Asst. Atty Gen., for appellee.

RICHARDSON Justice.

The perplexing question confronting us is the constitutional validity of chapter 12, Act of Extra Session 1934 of the General Assembly, entitled: "An Act to appropriate to school teachers in forty-three counties and twelve graded school districts of the Commonwealth the amount due such teachers for services rendered as specified in contracts with the boards of education of the said counties. ***"

Section 1 lists 43 counties and 12 graded school districts and appropriates to the teachers of these various county and graded school districts for the specific purpose of paying the teachers in those county and graded school districts "so listed for the part of the wages or salaries due them and now unpaid." It directs the auditor of public accounts to draw his warrant upon the treasurer of the commonwealth in favor of the boards of education of those county and graded school districts, and enjoins upon their boards the duty of distributing "to the various teachers of the respective county and graded school districts, the wages and salaries to which they are shown to be entitled and unpaid for said school year"; 50 per cent. to be paid during the fiscal year ending June 30, 1935, and 50 per cent., during the fiscal year ending June 30, 1936.

The auditor contends that the fund appropriated by the act, as soon as appropriated, became a part of the common school fund, as this term is defined by section 184 of the Constitution, and that section 186 of the Constitution imperatively requires a distribution of the common school fund on the census of pupil children for each year. It is also his insistence that the act does not come within the purview of the Governor's call of the Extra Session of 1934 (Acts 1934, Ex. Sess., p. VII).

The Board of Education of Calloway county insists that the sums listed in the act "are not an appropriation of the common school fund and thus required to be distributed per capita, but is the payment of a bonus in recognition of a moral obligation to pay for public service performed." And that, in this view, the act is constitutional. Likewise it insists that the act is within the Governor's call of the Extra Session.

To appropriately consider the questions thus presented, it is essential to review and interpret the present, and the antecedent, act and statutes in pari materia with the provisions of the Constitution relative thereto.

A casual reading of the title of the act discloses that its intent and purpose is to appropriate to school teachers of the designated county and graded school districts the amount due them for services rendered, as specified in contracts with the boards of education. The context thereof discloses more specifically its intent and purpose is to appropriate out of the general fund "for the part of the wages or salaries due" them "to which they are shown to be entitled and unpaid for said School Year" in the county and graded school districts listed in the act.

It is apparent that the title of the act, as well as the body denies to the teachers in all other county and graded districts of the commonwealth the benefit of the appropriation. Also, that the services of the teachers in those county and school districts were rendered under contracts with the boards of education, and that the fund is appropriated to pay "wages and salaries to which they are shown to be entitled and unpaid for said School Year."

Section 171 of the Constitution, in part, reads: "Taxes shall be levied and collected for public purposes only and shall be uniform upon all property of the same class subject to taxation within the territorial limits of the authority levying the tax; and all taxes shall be levied and collected by general laws."

Section 183 declares it the duty of the General Assembly, by appropriate legislation, to provide for an efficient system of common schools throughout the state.

Section 184 stipulates for the issuance of bonds of the commonwealth in favor of the boards of education for the sum therein designated, together with certain stock in the bank of Kentucky, shall be held by the board of education inviolate for the purpose of maintaining a system of public schools. The interest and dividends, "together with any sum which may be produced by taxation or otherwise for purposes of common school education, shall be appropriated to the common schools, and to no other purpose."

Section 185 enjoins upon the General Assembly the duty to make provision by law "for the payment of the interest of said school fund, and may provide for the sale of the stock in the Bank of Kentucky; and in case of a sale of all or any part of said stock the proceeds of sale shall be invested by the sinking fund commissioners in other good interest-bearing stocks or bonds which shall be subject to sale and reinvestment, from time to time, in like manner, and with the same restrictions."

Section 186 provides "each county in the Commonwealth shall be entitled to its proportion of the school fund on its census of pupil children for each school year."

Section 187 deprives the General Assembly of making a distinction in the distribution of the school fund on account of race or color, and requires the maintenance of separate schools for white and colored children.

Section 3 of the Bill of Rights is in this language: "All men, when they form a social compact, are equal; and no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services."

Section 4426-1, Kentucky Statutes, provides that every county outside of independent graded school districts, or city school districts, containing a city of the first, second, third, or fourth class, shall constitute one county school district, which shall be divided into subdistricts, subject to the power of the county board of education to change the boundaries of the latter, or to establish new, or to unite subdistricts or parts of subdistricts.

Section 4399a-8 prescribes the duty of the county tax commissioner of each county to show on his books each assessment of the property subject to taxation for county and common school purposes. And after the same shall have been received by the county clerk and receipted for by the county board of education, it becomes the duty of the county board of education each year to prepare, as therein provided, an itemized and detailed budget needed for the supplementing of teachers' salaries during the succeeding school year, and also the estimated total amount that will be received by the state and the amount that will be needed to be raised by local taxation, including the rate of levy necessary to raise such amounts which shall constitute the budget of the county boards of education, and when submitted to the fiscal court of the county, it becomes its duty to make an annual levy, levying therefor in accordance therewith.

Section 4445 provides that the contract between the division board of education and the teacher shall expressly provide that its terms are subject to all the provisions of the common school laws.

Sections 4502-1, 4502-2 prescribe the qualifications of teachers of common schools.

Section 4502-3 defines the kinds of certificates the teachers of common schools shall possess.

Section 4399-46 fixes the minimum salaries of such teachers at not less than $75 per month; provided that the revenue received by any district from all the state per capita plus one-half of the revenue received from local taxation shall produce a sufficient revenue to pay a minimum salary of $75 per month for a period of several months for elementary teachers and a period of eight months for high school teachers, allowing 15 per cent. for each census pupil in the district.

The General Assembly, at its 1930 Session, passed an act appropriating annually out of the general fund of the state $1,250,000 to be expended and administered under the direction and supervision of the state board of education. Chapter 36, Acts 1930. This appropriation was therein designated as the fund "for the raising the level of expenditures per pupil for educational purposes in school districts where the level of educational opportunities are below the level and standard fixed and prescribed by law and the state board of education." The local boards of education which had levied the maximum school tax permitted by law, and caused its budget and salary schedule to be approved by the state board of education, were privileged to apply for aid from the fund thereby appropriated. Accordingly, the chairman of the state board made a requisition upon the auditor of public accounts for the amount allotted to these county and graded school districts. The auditor of public accounts declined to issue a warrant upon the treasurer for the sums requested. The state board of education thereupon brought an action in the Franklin circuit court, in which a mandatory injunction was sought to require him to draw a warrant upon the state treasurer for a stated sum. The auditor of public accounts defended. From an adverse judgment, he appealed to this...