Graham v. Jewell

• Decision Date: 01 July 1924
• Citation: 204 Ky. 260,263 S.W. 693
• Parties: GRAHAM v. JEWELL ET AL.
• Court: Kentucky Court of Appeals

263 S.W. 693

204 Ky. 260

GRAHAM v. JEWELL ET AL.

Court of Appeals of Kentucky.

July 1, 1924

Appeal from Circuit Court, Daviess County.

Suit by John L. Graham against Boyce Jewell and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Clements & Clements, R. M. Holland, Slack, Birkhead & Slack, and Ben D. Ringo, all of Owensboro, for appellant.

Woodward Warfield & Dawson, of Louisville, and T. F. Birkhead, of Owensboro, for appellees.

McCANDLESS J.

John L Graham was elected to the office of county school superintendent of Daviess county at the November election 1917, and qualified in January following. While serving that term he was on the 5th of March, 1921, re-elected by the county board of education for a period of four years, beginning January 1, 1922, and has thus been serving as superintendent continuously since January, 1918.

Graham seems to be a man of unusual activity and enthusiasm in field work, but has not been so successful in keeping the records of his office and in the discharge of other executive duties. His office was inspected and audited during the fall of 1922 by an auditor of the state board of education, W. L. Threlkeld, who filed a lengthy report covering the period to July 1, 1922, and which bristled with caustic criticisms. Considerable notoriety was given the matter, and the affairs of the board were investigated by two successive grand juries, and it is intimated in the briefs that two members of the board of education were indicted, though that does not appear in the record, nor is the charge against them stated. Threlkeld was a witness before the December, 1923, grand jury, and that body reported that they were unable to find any fraudulent or criminal irregularities, but condemned the administration of the county board, and recommended that the superintendent resign his office.

Possibly this was an issue in the 1923 election. At any rate, a new board of education was then elected. This board was inducted into office the following January. It employed a local accountant, W. B. Miller, who examined the books of the office for the period during which Graham had been in office and reported thereon. The board also had a public accountant from Louisville to audit the books to January, 1923. On the 18th of March, 1924, a petition was filed before the board of education seeking the removal of Graham from office of superintendent. Due notice of this was given Graham, and a hearing thereon assigned for April 1, 1924. Graham appeared by counsel, demurred to the jurisdiction of the board to act in the premises, demurred to the petition as a whole, and to each separate paragraph. His demurrers being overruled, he took exceptions, and moved that each of the charges be made more specific and definite. This was also overruled, and exceptions taken, whereupon he filed response, and evidence was heard. An adjournment was had during the proceeding to April 15, at which time the evidence was completed, and the board indicated that it would sustain the charges and remove Graham from office. Pending that action he filed a petition in equity in the circuit court to enjoin the board from so doing. The issues were completed by appropriate pleadings, and by agreement a transcript of the evidence and proceedings, together with the original exhibits used in the trial before the board of education, was filed in the circuit court. The court, upon a consideration of the case, dismissed the petition, and this appeal results.

It is urged that the charges are insufficient in that they are not definite or specific; (2) that the charges were not sustained by any competent evidence; (3) that the proceedings by the board of education were based on an invalid statute, and that body was without jurisdiction to hear or determine them. Considering the last question first, the provision assailed is a portion of chapter 36 of the Acts of 1920, approved March 22, 1920. It is entitled:

"An act creating a county board of education, prescribing its duties, fixing the tenure of office and compensation of its members; providing for the election of county superintendent by said board; fixing his qualification, compensation and term of office and prescribing his duties and fixing his bond; providing for the election of an attendance officer by the county board of education; providing for a levy of tax for common school purposes in each county; prescribing the duties of the county tax commissioner, the county court clerk, with reference to the assessment of the property subject to said tax and prescribing the duties of the county board of education and the fiscal court levying said tax and prescribing the duties of the sheriff in collecting said taxes and making his settlement to the fiscal court; providing the manner of paying his commission for collecting same; prescribing the duties of the fiscal court with reference to making settlement with the sheriff for said tax; providing for employment of teachers; providing for the appointment of district trustees and prescribing their duties.

The act creates a county board of education, and prescribes the qualifications and duties of its members; provides for their election, and gives to the board plenary powers in the administration and conduct of public schools of the county and all matters appertaining thereto, including the appointment, direction, and control of the officers and teachers.

The parts involved in this case are:

Section 10. "The county board of education of each county shall appoint, in 1921, a county superintendent of schools for a term of not more than four years from the first day of January next succeeding his appointment."

Section 7. "* * * For incompetency, neglect of duty or immoral conduct, the county board of education may suspend or remove from office the county superintendent or any of his professional assistants, any principals, assistant principal or teacher or subdistrict trustee."

Section 15. "And all laws and parts of laws in conflict with the provisions of this act are hereby repealed."

Formerly provision was made for the removal of the county superintendent by section 4420, Ky. Statutes, which reads:

"The county court may, at any regular term, after ten days' notice, remove a county superintendent for inability, for habitual neglect of duty, or malfeasance in office."

An appeal is also provided to the circuit court and the Court of Appeals.

There is no reference in the title of this act to the removal of the county superintendent from office, nor to the repeal of section 4420, Ky. Statutes. It is insisted that in these particulars the act conflicts with section 51 of the state Constitution, which provides that no law shall relate to more than one subject, and that shall be expressed in the title.

Under the title, this act might have provided that the superintendent should be appointed by the board and serve during its pleasure. If this had been done, necessarily the board would have had the power of removal. Instead it authorized the board to appoint such officer for any length of time not to exceed four years, and to remove him for certain causes therein stated. So far as conforming to the title is concerned we can draw no distinction between the two; either is germane to the general subject. Further, it appears that the act embraces the entire administration of the public schools of the county, and that all of its parts are naturally connected with each other and relate to that general subject; certainly the one assailed is not foreign to the subject. This meets the requirements of section 51. Smith v. Commonwealth, 175 Ky. 286, 194 S.W. 367; Johnson v. City, 121 Ky. 594, 89 S.W. 672, 28 Ky. Law Rep. 569; Weber v. Commonwealth, 72 S.W. 30, 24 Ky. Law Rep. 1726; Diamond v. Commonwealth, 124 Ky. 418, 99 S.W. 232, 30 Ky. Law Rep. 655; Nunn v. Bank, 107 Ky. 262, 53 S.W. 665, 21 Ky. Law Rep. 961; McGlone v. Womack, 129 Ky. 274, 111 S.W. 688, 33 Ky. Law Rep. 811, 17 L.R.A. (N. S.) 855; Commonwealth v. Starr, 160 Ky. 260, 169 S.W. 743; Wiemer v. Commonwealth, 124 Ky. 377, 99 S.W. 242, 230 Ky. Law Rep. 523; Thompson v. Commonwealth, 159 Ky. 8, 166 S.W. 623; Hyser v. Commonwealth, 116 Ky. 410, 76 S.W. 174, 25 Ky. Law Rep. 608; Eastern Ky. Coal Lands Corp. v. Commonwealth, 127 Ky. 667, 106 S.W. 260, 32 Ky. Law Rep. 129, 108 S.W. 1138, 33 Ky. Law Rep. 49; Phillips v. Cov. & Cincinnati Bridge Co., 2 Metc. 219; Commonwealth v. Robinson, 192 Ky. 374, 233 S.W. 791; Board of Trustees v. Tate, 155 Ky. 296, 159 S.W. 777; Henderson Bridge Co. v. Alves, 122 Ky. 46, 90 S.W. 995, 28 Ky. Law Rep. 99.

South v. Fish, 181 Ky. 349, 205 S.W. 329; District Board of Trustees v. Bradley, 188 Ky. 426, 222 S.W. 518, and Exall v. Holland, 166 Ky. 315, 179 S.W. 241, are relied on by appellant as authority for the invalidity of the act.

In South v. Fish the subject of the act was first stated generally in the title, but in a later part there was a restriction to the repeal and re-enactment of certain named sections of the former statute. Subsection 20 of the act (Acts 1918, p. 290) attempted to repeal another section not mentioned in the title, and this was held to be invalid on account of the restrictions named in the title.

In the Bradley Case the same principle was applied, and as the title was restricted the act was limited to the subjects enumerated therein.

In the Exall Case the act was entitled, "An act defining public roads." It was held that the act was limited to public roads, and so much of it as applied to private passways was invalid. It thus appears that those cases are not in conflict with the above views.

We have heretofore held that it is not essential to the repeal of a statute to refer to such repeal in the...