Board of Education of Jefferson County v. State, 6 Div. 750.

• Decision Date: 20 November 1930
• Docket Number: 6 Div. 750.
• Citation: 131 So. 239,222 Ala. 70
• Parties: BOARD OF EDUCATION OF JEFFERSON COUNTY ET AL. v. STATE EX REL. KUCHINS ET AL.
• Court: Alabama Supreme Court

131 So. 239

222 Ala. 70

BOARD OF EDUCATION OF JEFFERSON COUNTY ET AL. v. STATE EX REL. KUCHINS ET AL.

6 Div. 750.

Supreme Court of Alabama

November 20, 1930

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Special Judge.

Petition of the State, on the relation of C. R. Kuchins and others for mandamus to the Board of Education of Jefferson County and others. From a judgment for relators, respondents appeal.

Affirmed.

Huey Welch & Stone, of Bessemer, for appellants.

C. L Odell, of Bessemer, for appellees.

THOMAS J.

The petition for mandamus and rule nisi pursuant thereto were directed to the respective bodies and their members and officials having to do with schools, funds, and the attendance upon the public schools in and near to the city of Bessemer.

The respective parties are the board of education of Jefferson county and its members, the superintendent of schools of Jefferson county, the board of education of the city of Bessemer and its members, the superintendent of its public schools, and the superintendent of education of the state of Alabama.

The prayers of the petition are to the effect that said boards be required to make an agreement whereby "children of school age living outside of the city limits of Bessemer, but nearest to said city schools may attend the city schools, or whereby children living in said city of Bessemer nearest county schools of Jefferson county, Alabama may attend said county schools"; that provision be made for relators' respective children to be permitted to attend city schools free of charge and without the payment of tuition for attendance for the school year 1929-30; that said children be given due and proper credit for work done in said city school during the past scholastic year 1929-30, and to provide for their advancement to the proper grades in said school; that "if in aught they are mistaken as to the rights, powers and prerogatives of said Boards of Education, then that such Boards of Education or said Superintendents of Jefferson County and the City of Bessemer and the said State Superintendent of Education be directed to take whatever action that may be necessary to give Relators and their said children, respectively, whatever relief they may be entitled to under and by virtue of said Alabama School Code by reason of the facts hereinabove stated"; and for general relief.

To this petition are exhibited respective petitions theretofore directed by petitioners to said respective boards and members thereof (board of education of Jefferson county, board of education of city of Bessemer) to make the proper and lawful agreements, and to take necessary action to provide for said children to attend the city schools of Bessemer.

And as to this it is averred in this petition (of the board of education for Jefferson county) that "said Boards of Education failed or refused upon said written request or demand to make such an agreement and have continuously, throughout the said school term to the time hereof, failed or refused to make any such arrangement or agreements." It is likewise averred that the board of education for the city schools of Bessemer failed or refused to grant their said request on demand or to make the agreement indicated; that, "notwithstanding said Boards of Education failure or refusal to make such an agreement, they have continued to send their said children to the said city schools of Bessemer, that the Superintendent of the said city schools has made repeated demands on Relators that they pay tuition to the school authorities of the said City of Bessemer for their said children, and has repeatedly threatened to expel said children from such school unless said tuition was paid. Relators further aver that notwithstanding such threats of expulsion they have continued to send their said children to said city schools of Bessemer, but that the school authorities of said city school are now withholding proper credits for work of such children in said city school unless Relators pay said tuition." It is further averred "that, being unable to have said Boards of Education make an agreement whereby their said children could attend the said city schools of Bessemer free of charge, they have by verbal request or demand and by correspondence with A. F. Harman, State Superintendent of Education, who, as relators are informed and are advised has authority in such cases under said Alabama School Code to direct said School Boards of Jefferson County and of the City of Bessemer, to make, or require said Boards of Education to make such an agreement"; "that under the terms of the said Section of said School Code that they are entitled, as a matter of law, to have said Boards of Education make said agreement and to provide for their said children to attend said City Schools of the said City of Bessemer free of charge on account of such children being nearest such schools, and that such children are entitled to receive due and proper school credits for their school work in such school while attending same, and that they are entitled to have the said Board of Education for Jefferson County, Alabama, authorize the payment, from the public school funds from said County, a ratable proportion of said funds to the duly authorized agent of the Board of Education of the City of Bessemer, for the attendance of their said children in said City Schools of Bessemer, both for that part of the school year which is now past, as well as that which remains."

The School Code providing, or seeking to provide, a harmonious system according to law and the best administration of the public schools, its patronage and expenditure of the public funds, contains many specific provisions that have been adopted and known as the Alabama School Code of 1927. Sections thereof are: Section 246, providing in substance: "As soon as practicable, after the State Superintendent of Education has apportioned the school funds to the several counties, and has certified the same to the County Superintendents of Education, the County Boards of Education shall apportion the funds awarded to their respective counties to the several schools and to cities having a City Board of Education in their counties so as to provide, as nearly as practicable, school terms of equal duration, taking into consideration all public school funds" ; section 250, in effect being: "All local school monies raised for the support of public schools by taxation or otherwise shall be apportioned and expended in the district or districts or counties in which the same were raised, under such rules and regulations as the County or City Board of Education, as the case may be, may prescribe, but this section shall not be construed to repeal any provision for the apportionment and disbursement of monies mentioned in this Code or provided for in special or local laws, and all funds contributed by persons or otherwise to any school or school district shall be applied as indicated in the grant from such contributors" (italics supplied); and section 720, which is as follows: "Any person residing in a County of over two hundred thousand population according to the last or any subsequent census, and who pays taxes on real estate situated in any Municipality in such County, which Municipality has over seventy-five thousand population according to the last or any subsequent Federal census, may, although not residing in such municipality, send his children to any public school of such Municipality upon the same terms, conditions and charges as if he resided within the corporate limits of said Municipality."

With the foregoing, and in article 9, under the heading of City Board of Education, is section 203 of the School Code, in words as follows:

"City and County Boards of Education shall have authority to reach agreements (1) whereby children in the City may attend the schools in the County, and (2) whereby the children in the County may attend the schools in the City, and (3) they shall do so when the school in the City or in the County, as the case may be, is nearer to such pupils. In the event the said Boards do not reach agreements for such attendance, the matter (4) shall be referred by either Board to the State Superintendent of Education who (5) shall, after investigation, issue an order relative to same which shall be binding on both Boards. (6) Other non-resident pupils may be admitted on such terms as the Board of Education of the City may prescribe." (Italics and numbers supplied.) We have subdivided its provisions for convenient reference. A field of operation, if such there be, and construction should be given this enactment that it will not be rendered repugnant to organic law.

To advert to the pleading before us and as pertaining to said section 203, School Code, it will be noted that the pertinent agreement said respective boards have "failed or refused" to make is stated in the petition as follows:

"Relators are advised and informed that under Section 203 of the Alabama School Code it is mandatory upon Boards of Education of Counties and of Cities to make an agreement whereby children of school age living in the County nearest the Public Schools of Cities may attend such schools, and those living in Cities nearest County Schools may attend the same. But Relators aver that they are informed and believe and upon such state as a fact that the Boards of Education of Jefferson County, Alabama, and of the City of Bessemer, Alabama, have made no such agreement as directed by said Code, whereby children residing in the County nearest the City Schools of the City of Bessemer may attend such school."

It is further averred as of fact:

"That Relators, together with their said children,

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