Constitution, sec. 158, limits indebtedness of cities, towns, counties, and taxing districts, but contains exception as to case of emergency when public health or safety requires. School sought to be replaced had been saved from condemnation by state fire marshal's office by promise to erect new building, and state inspector of school buildings had insisted that new school be built. It was inadequate to educational, physical, and sanitary requirements of pupils, and test showed larger percentage of pupils with defective vision than in other schools. Other schools were overcrowded, requiring transfers of pupils, and one junior-senior high school was without assembly room, gymnasium, shop, or opportunity for vocational work. It had been necessary to divide children of first grade into two groups, one attending in forenoon and the other in the afternoon.
2. Schools and School Districts. — Statute does not authorize board of education to determine whether emergency exists authorizing bonds in excess of constitutional limit (Ky. Stats., sec. 3469a-1; Constitution, sec. 158).
Acts 1920, c. 53, sec. 10 (Ky. Stats., sec. 3469a-1), authorizes submission to voters of question of issuing bonds whenever board of education deems it necessary for proper accommodation of schools to purchase site, erect building, etc., and annual funds from other sources are not sufficient.
3. School and School districts. — General Assembly cannot give school district power to exceed constitutional debt limit (Constitution, sec. 158).
Appeal from Daviess Circuit Court.
OPINION OF THE COURT BY DRURY, COMMISSIONER
Reversing.
This appeal is prosecuted from a judgment holding valid a bond issue of $200,000 duly voted by the Owensboro city school district. This bond issue is attacked because, when these bonds are issued and added to the already existing indebtedness of the district, the sum will exceed the constitutional indebtedness limit about $157,000. The district admits that, and seeks to sustain this issue upon the idea that an emergency exists. The part of the Constitution which is involved is this:
"Sec. 158. The respective cities, towns, counties, taxing districts and municipalities shall not be
authorized or permitted to incur indebtedness to an amount, including existing indebtedness, in the aggregate exceeding the following named maximum percentages on the value of the taxable property therein, to be estimated by the assessment next before the last assessment previous to the incurring of the indebtedness, . . . counties, taxing districts and other municipalities, two per centum (2%):. . . Unless in case of emergency, the public health or safety should so require."
To support its contention the district relies upon a certain resolution of its board of education from which this is taken:
"Whereas, . . . the population of the City of Owensboro according to the federal census of 1930 is now 22,785 people, and the necessities in the case are accordingly greater than heretofore, as evidenced by the April 1930 school census of children between the ages of six and eighteen years of age, aggregating 5,148 in number, as compared with the 1929 enrollment of 4,336 school children between the ages aforesaid — an increase of 812 of such children between the 1930 census and the 1929 enrollment thereof, of which increase the enrollment for the first school day in 1930 is greater by 360 pupils than was the enrollment on such day in 1929, inevitably suggesting that while the increase in number of pupils for the two school years next preceding the instant year was 556, that is to say 3,780 for 1927-1928, compared with 4,336 for the school year 1929-1930, as the present school year advances a still greater increase must be anticipated with ensuing burdens, disadvantages and dangers attendant on the crowded condition hereinafter set out; and
"Whereas, in August 1928 the Chief Deputy of the State Fire Marshal's Department, after inspection thereof, explained to the proper Committee of the Owensboro City School District Board of Educaiton, that it was his duty to condemn the building known as Longfellow School, one of the seven graded school buildings in the said District and erected in 1900 by a private corporation as a Girls' Boarding School, but afterwards in 1915 to accommodate the fast-growing school population of the District, acquired by the Board for Public School purposes
and saved from condemnation as aforesaid by the promise of the Board to the State Fire Marshal's office that it would erect a new building on the site recently acquired by it as soon as the electors approved the bond issue therefor, and which as in paragraph 2 above was done, but which bond issue was never made; and
"Whereas, subsequently on August 20, 1930, the State Inspector of School Buildings, in his official report to this Board, commanded the discontinuance of the use of the building as soon as possible because of its `bad' condition, and that as per his earlier report of February 9, 1930, the present be the `last session (as the building is) going to wreck,' and that (you must `build a new school'; and
"Whereas, the said Longfellow School is woefully inadequate to the educational, physical and sanitary requirements of the 337 white children enrolled in grades 1 to 6, as particularly shown by the tests recently made of the vision of the school...
