Keller v. State Board of Education of Alabama

• Decision Date: 07 September 1938
• Docket Number: 3 Div. 274.
• Citation: 183 So. 268,236 Ala. 400
• Parties: KELLER v. STATE BOARD OF EDUCATION OF ALABAMA ET AL.
• Court: Alabama Supreme Court

183 So. 268

236 Ala. 400

KELLER v. STATE BOARD OF EDUCATION OF ALABAMA ET AL.

3 Div. 274.

Supreme Court of Alabama

September 7, 1938

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Bill for declaratory judgment by J. A. Keller, as President of State Teachers College of Florence, Alabama, against the State Board of Education of the State of Alabama and the individual members of said Board. From a decree favorable to respondents, complainant appeals.

Corrected and affirmed.

BOULDIN J., dissenting.

Lawrence H. Lee, of Montgomery, for appellant.

A. A Carmichael, Atty. Gen., and Silas C. Garrett, III, and Wm. H Loeb, Asst. Attys. Gen., for appellees.

Geo. W. Meuth, of Atlanta, Ga., Regional Counsel, Federal Emergency Administration of Public Works, amicus curiæ.

THOMAS Justice.

This was a suit for declaratory judgment. The bill was filed by Dr. J. A. Keller as President of the State Teachers College of Florence, Alabama, to determine the right of the State Board of Education of Alabama, the governing body of the institution, to borrow an amount not to exceed fifty-five thousand dollars from the Federal Emergency Administration of Public Works for the construction and equipment of a physical education building, swimming pool, etc.; and for that purpose to issue bonds or warrants bearing interest not to exceed four percent; and to secure their payment by pledging rentals and physical education building and swimming pool fees to be levied by the college on students in attendance at that institution, together with those other monies not derived from the general appropriations by the State to the college.

The State Board of Education proposed to enter into a contract with the United States Government whereby it will grant to the State, for the construction of a physical education building and swimming pool at the State Teachers College at Florence, as a relief project, $45,000 as a gift, and $55,000 on a thirty-year amortization loan; that the loan shall be repaid to the government from gross revenues accruing from the operation of the physical education building and swimming pool to be constructed on the campus of said institution by the use of such funds. Authority for this improvement is based on General Acts of 1935, p. 1064, under which all state educational institutions are granted the right to borrow money from Federal agencies for the erection of buildings, beautification of grounds, etc., and to comply with the requirements of the Federal agencies in reference to monies so loaned to issue bonds or warrants for the payment of same, and to pledge therefor fees from students to be levied by the institution and other monies not appropriated by the State. The bonds shall not be an obligation of the State, and shall not be payable out of any monies appropriated to the colleges or institutions by the State.

Due notice of a meeting of the State Board of Education was given and pursuant thereto a meeting was held at which there was a quorum of the governing body present. A resolution was duly adopted accepting the offer of the United States Government to the State Board of Education of Alabama to aid by way of loan and grant in financing the construction and equipping of a physical education building, etc., at said State Teachers College at Florence, Alabama, in the amounts we have indicated above.

To carry out the purpose of the resolution of its board and to provide for the payment of the costs of such proposed project (exceeding the amount of the grant made to the Board of Education by the United States Government), the Board of Education passed a resolution providing for the construction of a physical education building and swimming pool by the State Board of Education, declaring said construction to be a necessity, providing for the charging of rentals and fees for services rendered by the building and swimming pool, and providing for the issuance of bonds in accordance with the terms of said General Acts of 1935, p. 1064, to finance said construction. The resolution further contains an express contract on the part of the State Board of Education to faithfully and punctually perform all stipulated duties with reference to the project referred to, including the charging and collection of reasonable rentals and fees required in sufficient amounts for services rendered by the project, and to apply the parts of said respective funds created by the resolution to the amortization of said indebtedness.

The Board further duly resolved that there should be paid by the State Teachers College in Florence an annual rental in the sum of $1,200, payable at the rate of $100.00 a month for office facilities furnished the college by the physical education building, as such facilities accrue and are used, which sum should represent payment for services rendered by the accomplished and completed project to the State Teachers College. It was further resolved that there should be charged to the students attending the State Teachers College at Florence a quarterly fee of $2.50 as a physical education and swimming pool fee, which fee should be in addition to all other fees charged to the students and that all of the fees and the rentals above mentioned should be paid into a building revenue fund which should be disbursed as provided in the contract to discharge said obligation incurred.

The questions raised by the petition were as follows:

(1) Are special obligation bonds authorized by the governing board of the educational institutions of the State of Alabama payable solely from the revenue of the project constructed from the proceeds of such bonds, debts of the governing board, the college or the State of Alabama within the meaning of any constitutional or statutory limitations?

(2) If the project furnishes facilities to the college for which the project was constructed, may the college pay rentals monthly for the use of such facilities furnished by the project as such facilities accrue and are used by the college, such payments to be made from the general fund of the institution within its budget?

(3) May the governing board of the institution authorizing the issuance of the bonds provide remedies for bond holders by way of and as constituting the right of mandamus to enforce and compel the performance by its duly constituted official or officials of the duties and covenants contained in the bond-authorizing resolution?

In this connection, it may be stated that the decree of the circuit court is, among other things, as follows: "That the governing body of the educational institution which authorizes the issuance of the bonds may provide remedies for the holders of the bonds so issued, such as the right of mandamus to enforce and compel the performance of all the duties and covenants contained in the bond-authorizing resolution, including the fixation and collection of rentals and fees sufficient to meet the requirements of the resolution; and also that a receiver may be appointed, as provided by the resolution, for the sole purpose of taking charge and control of the project for the purpose of operating the same for educational purposes for and on behalf of the educational institution, and such receiver may have authority to charge and collect rentals and fees sufficient to provide for the payment of any bonds or other obligations outstanding against the Project and to charge and collect such rentals and fees as may be sufficient for the payment of the operating expenses of said Project, all such incomes and revenues of the Project to be applied strictly in conformity with the resolution and the provisions of the Act approved September 13, 1935, General Acts of Alabama 1935, p. 1064."

It is established in this jurisdiction that the State Board of Education has general control and supervision over the public schools of the state, and in particular over the State Teachers College at Florence, Alabama. Article 4, Sections 35 and 58 of the School Code of 1927; Article 26, Sections 474-480 of the School Code of 1927.

The special obligation bonds authorized by the governing board of the educational institutions of the State of Alabama which are to be payable solely from revenue derived from the operation of the project constructed from the proceeds of such bonds, are not debts of the governing board, the college or the State of Alabama within the meaning of any constitutional or statutory limitations. Harman v. Alabama College, 235 Ala. 148, 177 So. 747; 10 A.L.R. 900; Miller v. City of Buhl, 48 Idaho 668, 284 P. 843, 72 A.L.R. 687; Bankhead v. Town of Sulligent, 229 Ala. 45, 155 So. 869, 96 A.L.R. 1385. Many authorities from other jurisdictions are to like effect, as will be considered later.

It is declared in another jurisdiction that where the project sought to be erected furnishes facilities to the college, such as office space and other educational facilities, the college may pay reasonable monthly rentals for the use of such facilities furnished by the project as such facilities accrue; that payments may be made from the general fund of the institution and out of reasonable fees for the use thereof, so long as the college avails itself of the facilities so furnished, and the payment is within its budget or appropriation. State of Georgia v. Regents of University System of Georgia et al., 179 Ga. 210, 175 S.E. 567. Analogy is contained in State v. Clements, 220 Ala. 515, 126 So. 162.

A suit against a state official or agency to compel by mandamus or similar process the performance of official duties of a purely ministerial nature, involving the exercise of no discretion or political or governmental power, is not a suit against the state and may be maintained without the consent of the state...