Louisville & N.R. Co. v. Trustees of Elizabethtown Dist. Public School

• Decision Date: 29 October 1901
• Citation: 64 S.W. 974
• Parties: LOUISVILLE & N. R. CO. v. TRUSTEES OF ELIZABETHTOWN DIST. PUBLIC SCHOOL. [1]
• Court: Kentucky Court of Appeals

64 S.W. 974

LOUISVILLE & N. R. CO. v. TRUSTEES OF ELIZABETHTOWN DIST. PUBLIC SCHOOL. ^[1]

Court of Appeals of Kentucky.

October 29, 1901

Appeal from circuit court, Hardin county.

"Not to be officially reported."

Action by the trustees of Elizabethtown district public school against the Louisville & Nashville Railroad Company to recover taxes. Judgment for plaintiff, and defendant appeals. Affirmed.

W. H Marriott, for appellant.

Sprigg & Chelf, for appellees.

BURNAM J.

This action was instituted by appellees, the board of trustees of the Elizabethtown district public school, by virtue of an act of the general assembly approved on the 29th day of March 1878, to recover of appellant taxes assessed against it for the Elizabethtown district for the years 1893 to 1898 inclusive. The appellant resisted the collection of the taxes upon several grounds. First, it is insisted that the special act under which appellees are attempting to proceed was repealed prior to the accruing of the taxes sued for by virtue of the first section of the schedule of the constitution and section 171 of that instrument, and the act of July 6, 1893, relating to common schools. A similar point was raised in the cases of Roberts v. Clay City (Ky.) 42 S.W. 909, and Board of Education of Hawesville v. Louisville, H. & St. L. Ry. Co. (Ky.) 62 S.W. 1125; and it was held in both of these cases that, as charters of the cities of the fifth class make no provision for public education or the establishment of schools therein all matters with reference thereto were regulated by section 4433 of the Statutes, which is a section of the common school law, and by which it was expressly provided that the general law should not affect, modify, or repeal any local or special law then in force for the benefit of any school, high school seminary, college, or other institution of learning in the state, except as to teachers. We are of opinion that neither of the sections of the constitution nor the statute relied on repealed the special act of March 29, 1878, establishing a system of public schools in Elizabethtown common school district; and the act of the legislature, passed on the same day, repealed all previous acts establishing graded schools therein. The first section of the act of 1878 provides that the territory covered by the act was the territory at that time embraced by the Elizabethtown school district, or which might thereafter be added thereto, and there is no testimony in the record which conduces to show that the territory then embraced by the Elizabethtown school district was not identically the same territory in which the tax sought to be collected...