Board of Education of City of Winchester v. Foster

• Decision Date: 21 October 1903
• Parties: BOARD OF EDUCATION OF CITY OF WINCHESTER v. FOSTER ET AL.
• Court: Kentucky Court of Appeals

76 S.W. 354

116 Ky. 484

BOARD OF EDUCATION OF CITY OF WINCHESTER v. FOSTER ET AL.

Court of Appeals of Kentucky.

October 21, 1903

Appeal from Circuit Court, Clark County.

"To be officially reported."

Application by N. K. Foster and another for a writ of mandamus against the Board of Education of the City of Winchester. From an order granting the writ, defendant appeals. Reversed.

Beckner & Jouett, for appellant.

BURNAM C.J.

The appellee, N. K. Foster, a resident and taxpayer of the city of Winchester, brought this suit, praying that a writ of mandamus issue requiring the defendant, the Board of Education of the City of Winchester, to admit his coplaintiff, Gertrude N. Price, into the public schools of the city as a pupil without the payment of tuition fees which had been demanded of her by the defendant. In the original petition Gertrude N. Price united as a coplaintiff, and it is alleged, in substance, that she is a niece of N. K. Foster and has for three years continuously resided with him as a member of his family; that the uncle, N. K. Foster, agreed with her parents, who reside in Virginia, to board, clothe educate, and treat her as one of his own children so long as she continued a member of his family. In an amended petition it was alleged that the uncle had agreed with the niece that he would clothe, support, and maintain her as a member of his family until she was 21 years of age, and as much longer as she desired; and the niece had agreed, with the consent of her parents, to reside with him as a member of his family until she arrived at the age of 21 years; and that she now intended to do so, or so long as the uncle continued to reside in the city. The defendant filed a general demurrer to the petition as amended on the ground that it did not state facts sufficient to support a cause of action. The demurrer was overruled, and, declining to plead further, judgment was entered requiring the defendant to admit plaintiff Gertrude N. Price into the public schools of the city of Winchester as a pupil at the public expense without requiring the payment of tuition fees, and the defendant has appealed.

A determination of the questions raised by the appeal involves the construction of sections 3588 and 3605 of the Kentucky Statutes of 1899, provisions in the charter of cities of the fourth class, to which appellant belongs. By section 3588 appellant is authorized to establish a system of public schools for the benefit of the children residing in the city between the ages of 6 and 20 years, and to maintain them by a tax levied upon the taxpayers of the city. This section plainly restricts the benefit of such schools to children who are in good faith residents of the city. That such was the purpose of the statute is also shown by section 3605 of the statute, which authorizes the board of education to admit to the schools pupils from beyond the limits of the city upon the payment by them of reasonable tuition fees for the benefit of the schools of the city. The last clause of this section provides "that no child of persons residing beyond the city limits shall be admitted as a pupil in any such schools except on payment of such tuition fees as the board may require." The powers of the board of...