Ex parte Bd. of Educ. of Montgomery County
| Decision Date | 21 June 1935 |
| Citation | 84 S.W.2d 59,260 Ky. 246 |
| Parties | Ex parte COUNTY BOARD OF EDUCATION OF MONTGOMERY COUNTY KY., et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Montgomery County.
Petition by County Board of Education of Montgomery County, Kentucky and others for a declaration of rights. From a judgment dismissing the petition, petitioners appeal.
Reversed.
Prewitt & Prewitt, of Mt. Sterling, for appellants.
STANLEY Commissioner.
In Board of Education for Montgomery County v. Greer, 259 Ky. 97, 82 S.W.2d 196, decided May 3, 1935, we affirmed a judgment declaring void certain orders of the board consolidating two subdistricts with the Carmargo subdistrict school, made before the School Code of 1934 became effective. Thereafter the board, its members, the county superintendent and four citizens and taxpayers filed an ex parte petition in the circuit court reciting the proceedings of the other case and their vacation by the court, and alleging that a controversy existed among the petitioners as to (1) whether or not the judgment controlled the future action of the board in relation to the consolidation of these districts; (2) the construction of section 4399-6 of the Statutes (1934 Supp.) and (3) the constitutionality of that section and of section 4399-20 (1934 Supp.). A declaration of rights as to these matters was asked. The circuit court dismissed the petition "for the reason no actual controversy exists."
The petition recites that the petitioners were divided in their opinion as to the propositions submitted, and we think it was sufficient to authorize the court, under the peculiar circumstances, to take cognizance of the controversy and declare the rights in the premises. Sections 639a--2, 639a--3, Civ. Code Prac.
1. Inasmuch as the action of the board covered by the former judgment was taken under the law prior to the revision made at the regular session of the General Assembly in 1934, neither the judgment nor the decision of this court could affect subsequent action of the board taken under the provisions of the new law.
2. Under the old law (section 4426-1, Statutes, 1930 Edition), the county boards of education were given "full power, except as otherwise provided in this act" to change and unite districts. As we held in the opinion involving this particular situation, under the provisions of the law existing at that time where it was proposed to consolidate subdistricts each of which had as many as fifty pupils and to transport the children to the consolidated school, it was necessary that a special tax be levied by the vote of the people. By the new school code more extended powers were given the county board in respect of the management of the schools under its jurisdiction. The power to deal with the subdistricts goes so far as to authorize the board to abolish them. County Board of Education of Bath County v. Goodpaster, 260 Ky. 198, 84 S.W.2d 55. Of course, these powers are not arbitrary and do not permit abuse of reasonable discretion.
Section 4399-12 of the Statutes, 1934 Supplement (section 7, article 5, chapter 65, Acts 1934), provides that the...
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