Com. ex rel. Baxter, Com. Att'Y. v. Burnett

• Decision Date: 17 February 1931
• Parties: Commonwealth ex rel. Baxter Commonwealth's Attorney, v. Burnett.
• Court: United States State Supreme Court — District of Kentucky

237 Ky. 473

Commonwealth ex rel. Baxter Commonwealth's Attorney, v. Burnett.

Court of Appeals of Kentucky.

Decided February 17, 1931.

Quo Warranto. — County school superintendent held not "county officer," and therefore not subject to be proceeded against by commonwealth's attorney for alleged usurpation of office (Civil Code of Practice, secs. 483-486; Ky. Stats., secs. 4399a-10, 4426a-1; Constitution, sec. 183).

Constitution, sec. 183, in effect places duty upon state to promote public education, and makes it mandatory upon General Assembly to provide an efficient system. Under statutes relating to public school system, including Ky. Stats., secs. 4399a-10, 4426a-1, the county school superintendent is the administrative representative of the state department of education, and the superintendent of public instruction, and the executive agent of the county board, in conducting common schools lying within particular school district according to the statutes and plans and regulations promulgated by the state officials. The county superintendent of education performs no duty for the county as a unit or subdivision of government.

Appeal from Jessamine Circuit Court.

W.J. BAXTER and GLENN RICKETTS for appellants.

ROBERT BRONAUGH and GEORGE R. HUNT for appellees.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Affirming.

This action was instituted by the commonwealth's attorney for the Twenty-Fifth judicial district against the appellee, H.C. Burnett, charging that on April 5, 1928, he had been duly elected county superintendent of schools of Jessamine county, and on the same day as superintendent of schools of Nicholasville, and on March 31, 1930, was appointed a member of the state text-book commission; that, by reason of the acceptance of either or both of the two last-named offices, averred to be incompatible, he had forfeited the office of county school superintendent under the terms of section 3744 of the Statutes. It was also alleged that no other person was entitled to any of those offices.

Section 486 of the Civil Code of Practice declares that one who continues to exercise an office after having committed an act which by law creates a forfeiture may be proceeded against for usurpation thereof. It is provided in section 483 that usurpation of office may be prevented by an ordinary action instituted by the person entitled to the office or by the commonwealth. Sections 484 and 485 are as follows:

"It shall be the duty of the several Commonwealth attorneys to institute the actions mentioned in this chapter against usurpers of county offices or franchises, if no other person be entitled thereto, or if the person entitled fail to institute the same during three months after the usurpation.

"For usurpation of other than county offices or franchises, the action by the Commonwealth shall be instituted and prosecuted by the Attorney-General."

A special demurrer was sustained to the petition, and it was dismissed. The appeal is from that judgment.

The issue sharply presented is whether the county school superintendent is to be classed as a county officer within the meaning of section 484, quoted, and may therefore be proceeded against by a commonwealth's attorney. The question presents some difficulty, because of the general conception and statutory title of the office, coupled with the occupant's indirect election by the electorate of a single county; also because of some expressions to be found in several opinions of this court, apparently based upon the other suggested considerations. It is apparent that those observations and statements were unnecessary to the respective decisions or were used in a connection altogether different from that now presented. Nevertheless, they tend to confuse. Thus, in Schultz v. Ohio County, 226 Ky. 633, 11 S.W. (2d) 702, 704, a case which involved the determination as to whether a portion of a statute requiring the fiscal court to furnish an office to the county school superintendent had been repealed, it was said as a matter of history: "Notwithstanding the various enactments referred to, the general functions and primary duties of the head of the county school system have remained substantially the same, whether he was called a school commissioner and chosen by the fiscal court, or the school superintendent elected by the people for the first time in 1884, and later by the county board of education. He has always been regarded as an important county officer, whose duties and responsibilities have grown in importance and usefulness."

That was rested upon Fox v. Lantrip, 162 Ky. 178, 172 S.W. 133, 136, construing the Constitution with reference to changing salaries of officers during their term, where it was stated, "The school superintendent is a county officer." And in Ridings v. Jones, 213 Ky. 810. 281 S.W. 999, 1001, in holding certain provisions of the Corrupt Practice Act were applicable to the election of members of the county board of education, they and the county superintendent were referred to as "important county officers." Perhaps there are other cases containing like expressions.

When we come to decide the direct question as to the classification of that officer as regards the application of the usurpation laws, we must take a different view.

Our Constitution evidences explicit care to promote public education as a duty of the state, making it mandatory upon the General Assembly to provide an efficient system. Section 183.

As stated in City of Louisville v. Board of Education, 154 Ky. 316, 157 S.W. 379, 380:

"We have several times written, in substance and effect, that every common school...