Hickman College v. Trustees Colored Common School Dist. A

• Decision Date: 15 November 1901
• Citation: 65 S.W. 20,111 Ky. 944
• Parties: HICKMAN COLLEGE v. TRUSTEES COLORED COMMON SCHOOL DIST. A et al. [1]
• Court: Kentucky Court of Appeals

65 S.W. 20

111 Ky. 944

HICKMAN COLLEGE v. TRUSTEES COLORED COMMON SCHOOL DIST. A et al. ^[1]

Court of Appeals of Kentucky.

November 15, 1901

Appeal from circuit court, Fulton county.

"To be officially reported."

Action by trustees colored common school district A and others against Hickman College to recover plaintiff's proportion of a tax alleged to have been collected by defendant. Judgment for plaintiffs, and defendant appeals. Affirmed.

R. T Tyler and W. S. Pryor, for appellant.

Robertson & Thomas, for appellees.

O'REAR J.

The town of Hickman, Fulton county, constitutes common school district No. 16 (white) of that county. From the allegations of the petition in this case we infer that colored common school district A embraces the same territory. Prior to the adoption of the present constitution the legislature, by special acts, created the common school district No. 16 into a graded school, under the name of "Hickman College," and authorized it to levy and collect a specific ad valorem tax on all the property of white persons and corporations in that territory, for the use of appellant. It is alleged, and not denied, that there was levied against the property of the Nashville, Chattanooga & St. Louis Railroad Company (corporation) in that district, and collected, for the years 1891 to 1897, inclusive, the sum of $1,535.38, all of which was collected by and turned over to appellant, and that for the year 1898 a tax from the same corporation amounting to $194.81 was collected by the county superintendent, which he refused to apportion between the two districts, but was proposing to pay over to appellant. It was alleged that the colored children within the school age resident of the district, were 37 per cent. of the total number of children within the school age resident in that territory for the years 1891 to 1894, inclusive, and 40 per cent. for the remaining years. Appellees sued appellant to recover $583.93, their proportion of the railroad tax collected as above stated, and to require the county superintendent to pay to them (appellees) 40 per cent. of the taxes assessed and collected for the year 1898. The circuit court allowed appellees' claims, holding that appellant did not take the exclusive right to such taxes under the special acts referred to. The town of Hickman is a city of the fifth class.

In Mayor, etc., v. Wilson, 45 S.W. 82, this court held "Charters of cities of the fifth class make no provision for public education or the establishment of schools therein and it follows that matters connected with this subject are controlled either by provisions of the common school law, or by old charters under which they were governed at the time of the passage of the common school law. Section 4433. Ky. St.; Roberts v. Clay City, 42 S.W. 909. *** The fact that the legislature has delegated to cities of the first, second third, and fourth classes power to provide for public education therein, and has failed to confer this power upon cities of the fifth and sixth classes, plainly indicates that is was the intention that these municipalities should be controlled by the provisions of the common school law on his subject." This case was followed and approved in Trustees of Common School Dist. No. 8 v. City of Vanceburg (Ky.) 46 S.W. 1. In Harrodsburg Educational Dist. No. 28 v. Trustees Colored School Dist. No. 1, 49 S.W. 538, this court had before it the identical question presented here; that is, as to the apportionment between the colored and white districts of the railroad tax levied by the white school district. We there held that such tax, when so levied and collected, must be divided between the two districts, white and colored, in proportion to the number of children within the school age of each to the whole number. In so holding, we followed the express provision of section 4101, Ky. St.,--the only authority for levying and collecting such a tax. In the case of Roberts v. Clay City, ...