Hopkins v. Dickens

• Decision Date: 01 June 1920
• Citation: 188 Ky. 368,222 S.W. 101
• Parties: HOPKINS ET AL. v. DICKENS ET AL.
• Court: Kentucky Court of Appeals

222 S.W. 101

188 Ky. 368

HOPKINS ET AL. v. DICKENS ET AL.

Court of Appeals of Kentucky.

June 1, 1920

Appeal from Circuit Court, Clinton County.

Suit by G. D. Hopkins and others against W. A. Dickens and others trustees of a graded common school district. From a judgment for defendants, plaintiffs appeal. Affirmed.

Bertram & Bertram, of Monticello, for appellants.

Duncan & Bell, of Monticello, and J. G. Smith, of Albany, for appellees.

HURT J.

This appeal involves the validity of a proceeding which was instituted and terminated in the year 1919 under the provisions of section 4464, Ky. Stats. Supp. 1918, to establish a graded common school district, which includes within its boundaries the town of Albany, which is of the sixth class, and a certain portion of the adjacent territory but all of the territory included in the proposed graded common school district is situated within the bounds of the same justice's district. The pleadings admit that the election, held within the proposed graded common school district by the legal voters thereof, to determine whether they would vote an annual tax upon the property and polls of white persons and corporations within the district for the purpose of maintaining a graded common school and for the erection, purchasing, or repairing of suitable buildings therefor, if necessary, and for the selection of trustees was held on April 19, 1919, and resulted in a majority in favor of the imposition of the tax and the establishment of the district. Thereafter another election was held in the district upon the proposition whether or not the trustees should be authorized to issue bonds of the district in an amount not exceeding the limit provided by sections 157 and 158 of the present Constitution of this state, for the purpose of providing suitable grounds, school buildings, furnishing, and apparatus for the district, and that at such election two-thirds of the voters voting at the election voted in favor of the issue of the bonds. The latter election, as we presume, was held under the provisions of section 4481, Ky. Stats., and in accordance with the requirements of that statute. At least there is no complaint made of any irregularity touching that election. The appellants, who were the plaintiffs below, however, assail the validity of both elections upon the grounds that the district was not established in accordance with the law, and that the county court had not jurisdiction of the subject-matter when it entered its order defining the boundary of the district and directing the sheriff to open a poll and hold an election in the district as provided in section 4464, supra, the appellants alleging that both of the elections were void, and that the trustees, or pretended trustees, of the district were proceeding to levy and collect taxes as though the establishment of the district was valid, and sought to have them restrained from any further levies or collection of taxes upon the property or polls of the district, and to declare the entire proceedings null and void. A statement of facts was agreed upon by the parties to the following effect: (1) That the proposed graded common school district is within the boundaries of the First justice's district of Clinton county, and that the boundaries of the school district includes the whole of the town of Albany, which is a town of the sixth class; (2) that two-thirds of the territory included in the proposed graded common school district is without the corporate limits of the town of Albany; (3) that less than 25 per centum of the legal voters and taxpayers residing in the First justice's district subscribed the petition asking for the establishment of a graded common school district, but that more than 25 per centum of the legal voters and taxpayers, within the boundary of the proposed graded common school district, subscribed the petition asking for the establishment of the district.

Upon the record made the cause was submitted, and the court adjudged that the plaintiffs, who were voters and taxpayers within the proposed graded common school district, had failed to manifest any right to the relief sought, and dismissed the petition, and furthermore adjudged that the bonds proposed to be issued were valid obligations of the district, and that in the levying and collection of the taxes the trustees in the district were within their authority. The plaintiffs have appealed from that judgment, and insist that the judgment of the circuit court was erroneous, in that the county court, when it made the order fixing the boundary of the district and ordered the sheriff to hold an election as provided by section 4464, supra, was without jurisdiction to do so, and hence that all the proceedings thereafter were invalid. The jurisdiction exercised by the county court is assailed upon three grounds: (1) The petition, upon which the board of education and the county superintendent of schools indorsed their approval, was subscribed by only three petitioners, which was admittedly an insufficient number to give the court jurisdiction of the subject-matter; (2) the county board of education did not indorse its approval of the establishment of the district and its boundaries upon the petition in writing; (3) the petition upon which the court acted was not subscribed by 25 per centum of the legal voters who were taxpayers in the justice's district within the boundaries of which the graded common school district was proposed to be established.

(a) The determination of the merits of the third ground upon which the jurisdiction of the county court is denied depends upon the construction to be placed and the interpretation made of section 4464, supra. The section in part reads as follows:

"It shall be the duty of the county judge in each county of this commonwealth, upon a written petition signed by at least twenty-five per cent. of legal voters who are taxpayers in the justice's district, town or city of the fifth or sixth class in his county to make an order on his order book, at the next regular term of his court after he receives said petition, fixing the boundary of any proposed graded common school district, as agreed on by the county judge and the petitioners, and directing the sheriff or other officers, whose duty it may be to hold the election, to open a poll in said proposed graded common school district, at the next regular state, town or city election to be held therein, or on any other day fixed by said judge in said order, not in either case earlier than forty days from the date of said order, for the purpose of taking the sense of the legal white voters in said proposed graded common school district upon the proposition whether or not they will vote an annual tax, in any sum named in said order, not exceeding fifty cents on each one hundred dollars of property assessed in said proposed graded common school district, town or city belonging to said white voters or corporations, or a poll tax in any sum named in said order not exceeding one dollar and fifty cents per capita on each white male inhabitant over twenty-one years of age residing in said proposed graded common school district, or both an ad valorem and a poll tax, if so stated in the order, for the purpose of maintaining a graded common school in said proposed graded common school district, and for erecting, purchasing or repairing suitable buildings therefor if necessary."

A proviso In the section is to the following effect:

"Provided, that the proposition to establish any graded common school, as provided for in this section, * * * that no point on the boundary of any proposed graded common school district be more than two and one-half miles from the site of the school building," etc.

It must necessarily be conceded that the county court is without authority to fix the boundaries of a proposed graded common school district, or order an election held therein, as provided, in the statute, supra, until the county judge shall have received a petition signed by the number of persons and with the qualifications required. The qualifications prescribed for the persons who sign the petition are that they must be legal voters, and also taxpayers, in a justice's district, or in a town or city of the fifth or sixth class, in the county. The number of the signers must be "twenty-five per cent. of the legal voters, who are taxpayers," etc., and the point about which the contention here arises is whether they must constitute 25 per centum of the legal voters who are taxpayers in the proposed graded common school district, or whether they must be 25 per cent. of all the legal voters who are taxpayers in the justice's district, or town, in which the district is proposed to be established. If the statute requires the signers of the petition to amount in number to 25 per centum of the legal voters who are taxpayers in the proposed district, it is conceded that the petition in the instant case was amply sufficient. If it requires the signatures of 25 per centum of the legal voters who are taxpayers in the town of Albany, or in the magisterial district, within the boundaries of which the proposed district is situated, the petition was not sufficiently signed, and the county court was without jurisdiction to order the election, or to do anything, except to deny the application. To interpret the statute it must be ascertained and determined what the Legislature meant and intended, touching the requirement in issue, as the intention of the Legislature is what statute law is. Com. v. International Harvester Co., 131 Ky. 551, 115 S.W. 703, 133 Am.St.Rep. 256; Maysville, etc., R. R. Co. v. Herrick, 13 Bush, 122; Bailey v. Com., 11 Bush, 688. Of course, if the language of a statute is plain and...