Columbia Trust Co. v. Lincoln Institute of Kentucky

• Decision Date: 17 June 1910
• Citation: 129 S.W. 113,138 Ky. 804
• Parties: COLUMBIA TRUST CO. v. LINCOLN INSTITUTE OF KENTUCKY.
• Court: Kentucky Court of Appeals

129 S.W. 113

138 Ky. 804

COLUMBIA TRUST CO. v. LINCOLN INSTITUTE OF KENTUCKY.

Court of Appeals of Kentucky.

June 17, 1910

Appeal from Circuit Court, Jefferson County; Chancery Branch, First Division.

"To be officially reported."

Action by the Lincoln Institute of Kentucky against the Columbia Trust Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Bodley & Baskin, for appellant.

Humphrey & Humphrey and Alex. G. Barret, for appellee.

BARKER C.J.

The sole question arising for adjudication upon this record is the constitutionality of an act of the General Assembly of the commonwealth of Kentucky, commonly known as the "Holland bill," Laws 1910, c. 10, and which is as follows:

"An Act to Regulate the Establishment of Industrial Schools.

"Be it enacted by the General Assembly of the Commonwealth of Kentucky:

"Section 1. That it shall be unlawful for any person, company, corporation or association to own, control, operate or maintain any industrial school, college or institute where farming or any other occupation, trade, profession or calling is taught or sought to be taught, in its course of study or instruction where such person, company, corporation or association owns, operates or controls exceeding seventy-five acres of land unless said person, company, corporation or association shall obtain the consent of a majority of the legal voters residing in the voting precinct where such school is to be maintained or operated in the manner hereinafter provided.

"Sec. 2. Before any such school, college or institute shall hereafter commence operation the person, company, corporation or association owning or controlling said school shall apply to the judge of the county court of the county wherein said school, college or institute is located or sought to be located or operated for permission to operate, conduct or maintain such school, college or institute, and thereupon it shall be the duty of the said county judge to call an election in the voting precinct wherein such school, college or institute is located or sought to be located, operated or maintained for the purpose of taking the sense of the legal voters residing in said precinct upon the question of whether or not such school, college or institute shall be located, operated or maintained in said voting precinct, and in the event a majority of the legal voters in said voting precinct, voting upon said proposition, shall vote for the granting of said permission, then the said county judge shall grant same, but if the vote in said voting precinct be against granting such permission, then said county judge shall not grant such permission.

"Sec. 3. When application for such permission is filed with the judge of the county court of the county wherein such school, college or institute is sought to be located, operated or maintained, said judge shall call an election to be held between the hours of six o'clock a. m. and four o'clock p. m. on a date to be fixed by him, giving notice thereof by at least twenty written or printed notices posted in conspicuous places in said precinct for at least forty days prior to the date fixed for said election, and the board of election commissioners for such county shall appoint the officers of election to hold said election in such precinct where a vote is ordered, which officers shall be two judges, one clerk and one sheriff, whose duties and qualifications shall be the same as those serving in a general election; and said election officers shall certify the result of the vote within three days to the board of election commissioners of said county, who shall canvass the returns and certify the result to the county judge of said county. All expenses for said election to be paid by the applicant for such permission.

"Sec. 4. Any person, company, corporation or association who shall own, operate, control or maintain any such school, college or institute without procuring the permission hereinbefore set out shall be fined one hundred dollars for each and every day such school is so owned, operated, controlled or maintained.

"Sec. 5. The provisions of this act shall not apply to cities of the first, second, third or fourth class or to those schools, colleges and institutes already built and in actual operation for a period of one year before the passage of this act.

"Sec. 6. All laws and parts of laws in conflict with this act are hereby repealed.

"This act shall take effect from the date of its passage."

The question arose as follows: The appellee, Lincoln Institute of Kentucky, is a charitable corporation organized under the laws of the commonwealth of Kentucky, with power to establish a normal and industrial school for colored people. For the purposes for which it was organized, it has an endowment of some $400,000, which is held, in part, at least, by the Columbia Trust Company as its trustee. The appellee purchased a tract of land in Shelby county, Ky. of about 444 acres, upon which it proposes to erect the necessary buildings and to place the necessary implements and apparatus, and to inaugurate and maintain a normal and industrial school for colored people, in accordance with the purposes for which it was organized, and demanded of its trustee enough of the funds held by it to pay for the land so purchased. With this request the appellant refused to comply, for the reason that the provisions of the Holland bill had not been complied with, and that it would be unlawful to establish the school at the place selected without first complying with the provisions of the statute. A general demurrer to this answer was interposed and sustained, and, the defendant refusing to plead further, a judgment was rendered in accordance with the prayer of the petition; and of this the appellant complains. It being admitted that the appellee has failed to comply with the provisions of the Holland bill, it follows that, if that act is valid, the position of the appellant is sound, and the judgment should be reversed; on the other hand, if the act is unconstitutional, then the judgment of the trial court must be affirmed.

In order that the purposes and aims of the appellee corporation may be more fully understood, we insert herein the preamble and the first four articles of its constitution:

"Preamble.--In order to promote the cause of Christ we, the undersigned, hereby associate ourselves, and our successors, to form a corporation under the provision of article VIII, chapter 32 of the Kentucky Statutes, and adopt the following articles:

"Article 1.--Name. This institution shall be called the Lincoln Institute of Kentucky and located in Shelby county, Kentucky, nine miles west of Shelbyville, with such adjunct institutions as may be established in any other parts of the commonwealth.

"Art. II.--Object. The object of this institute shall be to furnish thorough Christian education in as many departments as resources permit, with special attention to the training of teachers and instruction in industrial pursuits, and with all possible adaptation to the educational needs of the colored people of this state.

"Art. III.--Christian Character. This institute shall endeavor to exert through all its departments and officers an influence distinctly Christian, but in the employment of officers and teachers, no sectarian test shall be applied, and no one Christian body shall be allowed to preponderate in the list of trustees or teachers."

The primary question with which we are confronted is: May the General Assembly of the commonwealth of Kentucky prohibit the institution and maintenance of such a school as appellee? We say, may the General Assembly prohibit, because it is manifest that, if the legislative power may be exercised in such a way as to authorize the voters of a precinct to prohibit the establishment of such an institution, clearly the Legislature may itself prohibit it. For the appellant it is maintained that the act in question is a valid exercise of the police power of the state, and for the appellee it is contended that it is an exercise of mere arbitrary power, in violation both of the Constitution of the state of Kentucky and the Constitution of the United States. To the solution of this question we will now address ourselves.

Section 1 of the Bill of Rights is as follows: "All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: (1) The right of enjoying and defending their lives and liberties. *** (3) The right of seeking and pursuing their safety and happiness. *** (5) The right of acquiring and protecting property.

"Sec 2. Absolute and arbitrary power over the lives,...