F.C. of Pendleton Co. v. Pendleton Co. B. of E.
| Decision Date | 20 October 1931 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Fiscal Court of Pendleton County v. Pendleton County Board of Education. |
1. Schools and School Districts. — Court has power to require fiscal court to comply with demands of school board, if made in accordance with statutes.
2. Constitutional Law — Schools and School Districts. — Courts are not concerned with wisdom of policy of board of education or wisdom of laws, but determines only whether policy is within statutes.
3. Pleading. — In board of education's suit against fiscal court to compel tax levy, copy of budget set forth in pleading became portion thereof (Ky. Stats., sec. 4399a-8).
The budget alleged to have been submitted to the fiscal court was set out in haec verba, and showed on face it was prepared in accordance with statute, Ky. Stats., sec. 4399a-8. A copy of the budget was also filed with and made part of petition by reference. In such case, the ruling expressed generally that an exhibit will not make bad petition good is not applicable.
4. Pleading. — Exhibit cannot supply omissions, but may cure or aid defective allegation.
5. Pleading. — Ordinarily, demurrer will not lie because of indefiniteness in statement of facts.
6. Pleading. — Considering petition as a whole, and judgment having been rendered thereon, board of education's petition against fiscal court to compel tax levy held not improper on ground allegation respecting consolidated district was indefinite and conclusion.
Petition alleged that original budget had been submitted to fiscal court and that plaintiff took over certain graded high school district in county as part of school system of county, and through oversight and mistake failed to make correction of budget including such district before filing. Supplemental budget was alleged to include expenses of such high school district, and to have been filed as provided by statute.
7. Schools and School Districts. — In making high school district part of county system, two boards need not incorporate in minutes declaration that consolidation had become desirable to provide more economical and efficient administration (Ky. Stats., sec. 4475a-1).
8. Schools and School Districts. — Action by boards looking toward merger of school district with county system held sufficient under statute (Ky. Stats., sec. 4475a-1).
There was submitted to county board communication signed by chairman and secretary of graded school board certifying that at regular meeting it was unanimously resolved, after careful deliberation and due consideration, to enter school into county public school system. Application to county board for entrance into county system was accordingly incorporated in communication, and county board, after setting forth in full this communication, declared that application was duly accepted.
9. Statutes. — Statute held not invalid because text authorizing two or more school districts to combine is not indexed by title (Acts 1928, c. 56; Constitution, sec. 51).
It was contended that the title was limited to a statement that procedure for combining adjacent school districts was the purpose of the act, while the body of the act conferred a power to combine the two districts; that the title presupposed the existence of the power and did not indicate that it was being granted by the legislation.
10. Constitutional Law. — Legislative act should be sustained, unless clearly offending constitutional mandates.
11. Constitutional Law. — Every consistent effort is to be made to harmonize statute and Constitution.
12. Statutes. — Narrow or technical construction will not be allowed in applying constitutional provision respecting title of statute (Constitution, sec. 51).
13. Schools and School Districts. — Payment of valid debts is necessary for proper maintenance of schools, and provision for their payment may be included in budget.
14. Schools and School Districts. — Mere existence of school indebtedness does not raise presumption of illegality.
15. Schools and School Districts. — Where school debt is illegal, item should be eliminated from budget, and tax rate sought to be imposed may be reduced proportionately.
16. Mandamus. — One challenging validity of indebtedness of municipality or of tax levy to pay obligation must allege as well as prove facts showing invalidity.
17. Mandamus. — Pleading challenging legality of school debts held insufficient.
The pleading charged in general way that item included for payment of debt was for purpose of paying illegal indebtedness incurred in preceding years by board of education having expended more than available revenue in violation of
law, and that board had undertaken to obligate itself to pay such illegal debt.
Appeal from Pendleton Circuit Court.
JOHN E. SHEPARD and H.B. BEST for appellant.
L.P. FRYER and JOHN P. McCARTNEY for appellee.
OPINION OF THE COURT BY STANLEY, COMMISSIONER.Affirming.
This suit was instituted by the county board of Education of Pendleton county against the fiscal court of that county to compel it to levy a tax rate of 75 cents per $100 for school purposes for the fiscal year beginning July 1, 1931, in accordance with a budget which had been submitted to it. The fiscal court disregarded the recommendation and demand of the board of education, and made a levy of 50 cents. The appeal is from a mandatory order entered by the circuit court directing the fiscal court and its members to make the levy as asked by the board of education.
The legal procedure was proper, and the power of the court to require the fiscal court to comply with the demands of the school board, if made in accordance with the statutes, cannot be denied. Board of Education of Marshall County v. Fiscal Court of Marshall County, 229 Ky. 774, 17 S.W. (2d) 1009; McCreary County Fiscal Court v. McCreary County Board of Education, 236 Ky. 149, 32 S.W. (2d) 741. A substituted budget was submitted, and it is the one with which we must deal. This budget contained an estimate of expenses necessary for the operation of the school at Butler, in Pendleton county, and an item of $5,000 to apply on the payment of a reported indebtedness of $10,000. These two items are submitted as being unauthorized and illegal, and therefore justified the fiscal court in rejecting the budget or rather in reducing the levy to 50 cents, which it is shown had been the tax during the previous years, but for school terms of seven instead of eight months. It is also argued that the petition was demurrable in that the budget, as submitted to the fiscal court, was illegal, as it was not alleged to have been approved by the state superintendent of public instruction and its adoption by the county board was not alleged; also an insufficient averment as to the taking over of the Butler graded school, the expenses of which are included.
Prompted by suggestions and criticisms, in appellant's brief of the action of the county board, it may be observed before entering upon a consideration of the points involved that the courts are not concerned with the wisdom or lack of wisdom of the policy adopted or pursued by the board of education in the management of the schools. We are to determine only whether it is within the purview of the statutes. Nor are we concerned with the wisdom of the laws themselves.
The text of the petition is not as full and definite as good pleading perhaps demands, but the budget, alleged to have been submitted to the fiscal court, is set out in haec verba, and it shows on its face that it was prepared in accordance with the statutes, and that the essential requirements were met. Section 4399a-8, Statutes. A copy of the budget was also filed with and made a part of the petition by reference. The rule expressed generally that an exhibit will not make a bad petition good is not applicable. Here it is set forth in the pleading, and is a portion of its body. The petition states whatever it states. Gordon v. Mames, 10 Ky. Op. 175; 49 C.J. 616. It is also a recognized rule, that while an exhibit cannot supply omissions, it may cure or aid a defective allegation. Lowe v. Broad Bottom Mining Co., 194 Ky. 88, 238 S.W. 192. Of special application see Howard v. Howard, 236 Ky. 557, 33 S.W. (2d) 635.
The petition alleged that an original budget, also copied in full, had been submitted to the defendant with the request for a 75-cent levy, and that subsequent to its preparation "the plaintiff took over the Butler Graded High School district in said county as a part of the school system of said county, and through an oversight and mistake failed to make a correction of said budget including said district before filing same, as aforesaid, on April 7, 1931." This supplemental budget was alleged to include the Butler district expenses, and to have been filed as provided by the statute. Criticism is leveled at this allegation with respect to the Butler school, as being indefinite and as a conclusion of the pleader. Ordinarily a demurrer will not lie...
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