Casto v. Upshur County High Sch. Bd.

• Decision Date: 02 October 1923
• Docket Number: (C. C. No. 265.)
• Citation: 119 S.E. 470
• Parties: CASTO et al. v. UPSHUR COUNTY HIGH SCHOOL BOARD.
• Court: West Virginia Supreme Court

119 S.E. 470

CASTO et al.

v.UPSHUR COUNTY HIGH SCHOOL BOARD.

(C. C. No. 265.)

Supreme Court of Appeals of West Virginia.

Oct. 2, 1923.

(Syllabus by the Court.)

Case Certified from Circuit Court, Upshur County.

Suit by O. L. Casto and others against the Upshur County High School Board. A demurrer to the bill was sustained, and case certified. Affirmed.

O'Brien & Hall, of Buckhannon, for plaintiffs.

Young & McWhorter, of Buckhannon, for defendant.

LIVELY, J. The bill assails the constitutionality of Senate Bill No. 74, passed by the Legislature of 1923, and contained in the acts of that year as chapter 86. being "An act to provide for the establishment of a county high school in the county of Upshur, and to provide for a special levy and a board of trustees for the same, " and is filed by several taxpayers of the magisterial districts affected thereby, and prays that the Upshur county board of education be enjoined from purchasing a site for the high school, laying and collecting levies, or in any other way putting into effect the act. Demurrer to the bill was sustained, and the action of the court certified for review. Is the act invalid as contravening the Constitution? This is the sole question.

The act establishes a county high school, and designates the presidents of the boards of education of Banks, Buckhannon, Meade, Union, Warren, and Washington districts of Upshur county, together with the county superintendent of free schools, as the Upshur county board of education for said school, authorizes it to purchase a site, erect suitable buildings thereon for a high school open to all pupils of high school grade in the districts named, and to lay a levy of not more than 30 cents on the $100 for three years on all the taxable property in said districts (exempting from the levy the property in Buckhannon independent district), for the purchase of the site and erection of the buildings. When the buildings are completed, then the board is authorized to lay a levy of 10 cents for maintenance purposes (excluding the property in the independent district) in the same manner and at the same time as levies are made by the district boards. The board is authorized to purchase necessary equipment and employ teachers and to do whatever is necessary to maintain and run the school in accordance with the general school law, and it is provided that, when the buildings shall have been completed and equipped, the same shall be maintained and governed by the general school laws, not in conflict with the act.

The bill asserts that the act is unconstitutional because:

(1) "It attempts to create a unit of high school territory which covers and embraces in part territory already pre-empted as high school territory by the Buckhannon independent district as created by chapter 3, Acts of the Legislature 1908 as set out in said act." (2) "That it attempts to create a high school unit covering the county of Upshur, without submitting it to a vote of the people as the Constitution and the Statutes of West Virginia require." (3) "That it attempts to empower the laying of levies on the taxable property in the territory of Banks district, Buckhannon district, Meade district, Union district, Warren district and Washington district, exclusive of the taxable property in Buckhannon independent district as created by chapter 3, Acts of the Legislature of 1908, thereby creating a unit for taxation and revenues within the high school unit for benefits, but not coextensive with the boundaries of said unit for benefits, in this, that it so excludes the taxable property in the said Buckhannon independent district from levy." (4) "That the Legislature by said act exceeded its powers 'in authorizing the board of education created by the act to raise money for the purpose of carrying out its provisions differently from that provided by the general school law.' " (5) "and for divers other reasons appearing in the preamble [title] and provisions of said act."

On the first proposition we do not find that the act attempts to affect the integrity of the Buckhannon independent school district in any way. The board of the independent district can function as before, conduct its high school therein (the bill alleges that the independent district is amply provided with a high school), lay levies therefor, and the taxable property therein is not affected by levy for the county high school.

The second and third propositions of invalidity are closely related and may be stated in the following proposition: Can the Legislature create a county high school and subject the property within the county to levy for the erection and equipment of the buildings, and for its maintenance and support? Almost all of the argument of plaintiffs' counsel is to sustain the negative of this question. It is argued that the act contravenes section 10 of article 12 of the Constitution, which provides that—

"No independent free school district, or organization shall hereafter be created, except with the consent of the school district or districts out of which the same is to be created, expressed by a majority of the voters voting on the question."

And that by the latter part of section 5, art. 12—

The Legislature "shall also provide for raising in each county or district, by the authority of the people thereof, such a proportion of the amount required for the support of free schools therein as shall be prescribed by general laws."

An independent district, while a recognized part of the general school system, is always authorized by special act, in which territorial limits are defined and the powers and duties of the administrative officers therein set out. It is usually composed of that part of the territory of a district or districts where there are many pupils of school age who cannot receive instruction to the degree desired under the ordinary district system and who are accorded better facilities, longer terms of school, and instruction in the higher branches. The property within its limits is usually subjected to a special rate of taxation for school purposes. As its name implies, it is independent of the general system in the length of the school term, employment of teachers, branches taught and to what extent, internal management generally, and taxation. Our present school law provides that the powers and privileges heretofore granted to any independent school district shall not be infringed upon in any manner by the general school law. Section 194, c. 45, Code. Under the first Constitution, the Legislature had power to authorize and create such independent districts without sanction of the people of the district or districts out of which it was carved; but the Constitution of 1872 (our present Constitution) incorporated section 10 of article 12, above quoted, which requires the sanction of the people affected. The reason for this changeis unimportant. If we were dealing with an act creating an independent district, the solution would be simple, the constitutional mandate would be carried out, and the act would be declared unconstitutional. But that is not the case here. We do not have an independent district. The territories of the school districts are left intact, and the boards thereof are functioning as before. Nothing is carved...