Booth v. Board of Education of City of Owensboro

• Decision Date: 25 March 1921
• Citation: 191 Ky. 147,229 S.W. 84
• Parties: BOOTH v. BOARD OF EDUCATION OF CITY OF OWENSBORO.
• Court: Kentucky Court of Appeals

229 S.W. 84

191 Ky. 147

BOOTH v. BOARD OF EDUCATION OF CITY OF OWENSBORO.

Court of Appeals of Kentucky.

March 25, 1921

Appeal from Circuit Court, Daviess County.

Action by W. B. Booth against the Board of Education of the City of Owensboro, etc. Judgment of dismissal, and plaintiff appeals. Affirmed.

Birkhead & Wilson, of Owensboro, for appellant.

Floyd J. Laswell, of Owensboro, for appellee.

SETTLE J.

This action was instituted in the court below by the appellant, W B. Booth, a resident taxpayer of the city of Owensboro, suing in his own behalf and for all other taxpayers of the city similarly situated, against the appellees, board of education of the city of Owensboro, its president and clerk; its object being to prevent by injunctive process, prayed of the court the issuance and sale by the appellees in aid of the common schools of Owensboro of certain bonds serially numbered 1 to 600, inclusive, of the denomination of $500 each, amounting in the aggregate to $300,000, and styled "Owensboro City School Improvement Bonds," which if issued by appellees as intended would bear date June 1, 1921 mature 30 years after date, and be payable at the United States National Bank of Owensboro, with interest at 6 per cent per annum from date, payable semiannually, in such amounts and at such dates, respectively, as may be stated by coupons attached to the bonds; the bonds to contain, however, a stipulation reserving to the board of education the right to pay, after the expiration of 5 years from the date of their issual, any number or all of them, with the accrued interest to the date of such payment. It is admitted in the petition that the question whether the bonds should be issued and sold by the board of education was duly passed on and affirmatively determined by the voters of the city of Owensboro January 22, 1921, at an election then held in that city; the proposition voted on being:

"Whether or not the board of education of the city of Owensboro shall issue bonds to the amount of three hundred thousand ($300,000.00) dollars, for the purpose of providing suitable grounds, school buildings and equipment for said city."

Of the 4,091 votes cast in the election 3,630 were given for and 461 against the proposition, making a majority in favor of the issuance and sale of the bonds largely in excess of the two-thirds required by law.

The petition alleges that there was a registration on January 15, 1921, of all voters who participated in the election and were qualified to vote therein, and admits that both the registration and election were held by the officers required by law to conduct them, following such publication of the calls therefor and notices thereof as were required by law; and that both were held in pursuance of certain resolutions, copied in and made a part of the petition, which were duly adopted by the appellee board of education at a regular meeting thereof, attended by all of its members, held December 6, 1920, which resolutions, after declaring the funds annually received by the board from taxation and all other sources for school purposes insufficient to meet the needs of the schools of the city, and the immediate necessity of raising additional funds to the amount of $300,000, for repairing and improving the present school buildings, and purchasing new sites for and erecting other necessary school buildings, ordered the holding of the election of January 22, 1921, for the purpose of taking the sense of the voters of the city of Owensboro regarding the issuing and sale of the bonds in question, and as preliminary thereto and to insure a fair election also ordered the holding of the registration of voters January 15, 1921.

The petition does not allege any defect or irregularity in the proceedings of the board of education looking to the issuance or sale of the bonds, or in the conduct of the election approving same. Nor does it question the need of additional funds for the support of the common schools of all grades in the city of Owensboro, or the necessity of the issuance and sale of the bonds to raise such funds, as declared by the board of education; or claim that the indebtedness that would thereby be incurred by the city of Owensboro would exceed the limit of indebtedness as fixed for a city of its class by the Constitution of the state. It is, however, alleged in the petition as a ground for the injunction therein asked that the resolutions and orders of the appellee board of education, requiring the special registration of voters and holding of the election for approving the issuance and sale of the bonds, and also the registration and election had and held pursuant thereto, were and are void, because the board was without power to make such orders or to issue or sell the bonds in question it being further alleged that, under the present common school law of the state (Acts General Assembly 1920, c. 53, p. 224), applicable to Owensboro, which is a city of the third class with a population of more than 15,000, the powers that were exercised by the appellee, board of education, in the particulars referred to, were and are confided by the statute, supra, to and can only be exercised by the successors in office of the present members of the board, who will be elected by the voters of the city of Owensboro as members thereof at the regular election to be held in November, 1921. The prayer of the petition asks, not only that the court enjoin the board of education from issuing and offering for sale the bonds, but also that the president and clerk of the board be enjoined from signing them as directed by its order to that effect.

Appellees filed a general demurrer to the petition, and, without waiving their right to insist upon same, also filed an answer, which specifically denied all affirmative allegations of the petition attacking the authority of the board of education to issue and sell the bonds, or the validity of the proceedings resulting in its claim of right to do so, and alleged the necessity for the issuance and sale of the bonds, and the facts relied on to show the legality of the election by which their issuance and sale are claimed to have been authorized, also the legality of the special registration previously had in order to insure the fairness of the election, and finally that the bonded and other indebtedness of the city of Owensboro, including the $300,000. of school bonds in question, is, and would be, with its existing indebtedness, less than the total indebtedness it is permitted, by the Constitution to incur.

After the filing by appellant of a general demurrer to the answer, the case was submitted upon the demurrer to the petition and answer and upon the merits as presented by all the pleadings referred to. The submission resulted in a judgment overruling the appellant's demurrer to the answer, sustaining that of appellees to the petition and dismissing the action, from which judgment the former has appealed.

It is apparent that the pleadings present all questions of law and fact involved in the case; and the only questions to be decided are whether the board of education of the city of Owensboro, as at present constituted, had the legal authority to determine the necessity of incurring for the benefit of the common schools of that city the indebtedness of $300,000, complained of in this case, and to order and call, as was done by it, the special registration and election in question.

It is argued in support of appellant's contention that, as under the common school law of this state in force prior to and when the act of 1920 was passed (Ky. Stats. §§ 3462-3480 inclusive) the board of education of a city of the third class had no authority to call or cause to be held therein an election for the purpose of obtaining the approval of its voters to the incurring by such city of a bonded indebtedness in aid of its common schools, when such authority was conferred by the act of 1920, supra, it was not intended by the Legislature that it should be...