Mark v. Bloom, Strother

• Decision Date: 10 January 1911
• Citation: 141 Ky. 474
• Parties: E. H. Mark v. I. N. Bloom, J. C. Strother, et al.
• Court: Kentucky Court of Appeals

141 Ky. 474

E. H. Mark v. I. N. Bloom, J. C. Strother, et al.

Court of Appeals of Kentucky.

Decided January 10, 1911.

Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).

A. SCOTT BULLITT, MARK RYAN and JAMES HEMPHILL for appellant.

HUMPHREY & HUMPHREY, ARTHUR M. RUTLEDGE, for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE HOBSON — Affirming.

Under the act of 1893 for the government of cities of the first class, a school board was created having charge of the city schools. Among other things this board was authorized to elect a superintendent of public schools for the term of two years. (Kentucky Statutes, section 2965.) E. H. Mark was elected by the board for the term beginning September 1, 1909, and expiring September 1, 1911. By an act approved March 4, 1910, a board of education was created consisting of five members to be elected from the city at large, at the general election in November, 1910. At that election appellees were elected as a board of education, and entered upon the discharge of their duties. Among other things, they made an order appointing E. O. Holland as superintendent, and removing Mark from office. He brought this suit to enjoin them from enforcing the order. The circuit court dismissed his petition, and he appeals.

The first question made by appellant is that the act does not confer upon the board power to disturb him during his term. Section 12 of the act provides:

"When the members of the board of education shall have been elected, shall have qualified, and shall have organized as hereinbefore provided, thereupon it shall become the duty of the existing school board and all officers, agents and employes thereof to surrender their places, and to deliver to said board of education all the common school property, both real and personal, of every kind whatsoever, and the control and management of the common school affairs of such city. * * *

"Provided, further, That the first board of education may continue the employment and service of any existing officers, teachers, agents or other employes, in their several capacities in connection with the administration of school affairs, until such time as they effect the change of administrative system applicable to the common schools as contemplated in this act."

Section 14 also provides:

"It shall be the duty of said board of education, as soon as practicable after its organization to appoint a superintendent of schools, a business director, a secretary and treasurer, and such other officers, employes and agents as it may deem proper; provided, that no such officer, employe or agent shall be a member of said board."

The act is a long document but taken as a whole, its manifest purpose is to create a new board elected in a different way in place of the common school board which had been elected not from the city as a whole but from wards; and it was intended to give this board power to re-organize the school system and to control it. With this view it was provided in section 12 that all officers, agents and employes of the old board should surrender their places, and deliver to the board of education all the common school property of every kind, and the control and management of the common school affairs of the city. And to leave no doubt of its meaning it was further provided that it should be the duty of the board of education among other things, as soon as practicable after its...