Naylor v. Board of Education

• Decision Date: 26 November 1926
• Citation: 216 Ky. 766
• Parties: Naylor, et al. v. Board of Education of Fulton County, et al.
• Court: United States State Supreme Court — District of Kentucky

216 Ky. 766

Naylor, et al. v. Board of Education of Fulton County, et al.

Court of Appeals of Kentucky.

Decided November 26, 1926.

1. Schools and School Districts — Chapter 82 of Acts of 1926, Repealing Statutes Relative to Subdistrict School Taxation, Held Not to Repeal Chapter 80 of Acts of 1926, which Repealed and Reenacted Such Sections (Acts 1926, chapters 80, 82; Kentucky Statutes, Supplement 1926, Sections 4458-4462, 4463b). — Acts 1926, chapter 82, expressly repealing Kentucky Statutes, sections 4458-4462, 4463b, relative to subdistrict school taxes, approved March 22, 1926, held not to repeal Acts 1926, chapter 80, repealing and reenacting Kentucky Statutes, sections 4458-4461, 4463b, approved March 26, 1926, but chapter 82 was intended to repeal named sections as they appeared in Carroll's Kentucky Statutes, 1922.

2. Statutes. — Statutes enacted at same session of legislature should receive construction which will give effect to each.

3. Statutes. — Where two acts are seemingly repugnant, they should be so construed that later will not repeal former by implication.

4. Statutes. — Seemingly repugnant statutes will be construed so that both will stand, if such construction can be reasonably given.

5. Statutes. — Act going into effect immediately will prevail over act passed before it, but going into effect later.

6. Statutes. — Of two conflicting acts passed at same session of legislature, one containing emergency clause will overcome the other.

7. Schools and School Districts — In Notice of Election to Levy Subdistrict School Tax, Setting out "Rate" of Proposed Tax Held Not Compliance with Requirement to Set Out "Amount" (Acts 1926, Chapter 80; Kentucky Statutes, 1922, section 4458). — In notice of election to levy subdistrict school tax, under Acts 1926, chapter 80, setting out rate of tax proposed to be raised held not compliance with requirement to set out amount, since only change made in amending Kentucky Statutes, 1922, section 4458, was to provide that rate as well as amount should be set out, and "amount," which is sum total of tax, is not same as "rate," which means fixed measure of estimation.

8. Schools and School Districts. — Provision of Kentucky Statutes, Supplement 1926, section 4458, requiring amount of subdistrict tax, proposed to be raised, to be set forth clearly in election notice, is mandatory, and omission of such statement renders election invalid.

Appeal from Fulton Circuit Court.

HESTER & STAHR for appellants.

B.T. DAVIS for appellees.

OPINION OF THE COURT BY JUDGE REES.

Reversing.

On this appeal the validity of a school tax election is involved. In 1916 a tax of 15c on each $100.00 of taxable property was voted in subdistrict No. 2 of educational division No. 2 of Fulton county, known as the Cayce school district, and that tax is still being levied and collected. In 1923 an additional tax of 20c on the $100.00 of taxable property was voted for a period of three years, ending July 1, 1926, for local school purposes and to maintain a high school in the district. During the early months of 1926 two elections were held in the district to vote an additional tax of 25c, at each of which a majority of the votes was cast against the tax. On June 19, 1926, the county board of education of Fulton county called a third election for July 24, 1926. At that election 129 votes were cast for the tax and 97 against it.

The appellants, who were taxpayers and legal voters of the district, filed suit in the Fulton circuit court seeking to have the election declared void on the ground that the law under which it had been held had been repealed by chapter 80 of the Acts of the General Assembly of 1926, and to enjoin the Fulton county board of education from levying the additional tax of 25c and the sheriff from collecting it.

The Fulton county board of education apparently conceded that the election held on July 24 was void and no further steps were taken in the action. On August 5, 1926, ten legal voters of the Cayce school district petitioned the board of education of Fulton county to call an election and submit to the voters of the district the question whether or not an additional tax of 25c, making a total tax of 40c, should be levied upon the taxable property in the district every year for a period of six years. The election was held on August 21, 1926, and resulted in 119 votes being cast in favor of the tax and 82 votes against the tax. The board of education of Fulton county thereupon entered an order on its records levying a tax of 40c on each $100.00 of taxable property in the district.

On August 26, 1926, the appellants filed suit in the Fulton circuit court against the board of education of Fulton county and John M Thompson, sheriff, seeking to have the election of August 21, 1926, declared void on the ground, among others, that the order calling the election and the notices failed to fix or show the amount of money to be raised by the tax.

On August 31, 1926, the board of education of Fulton county filed a petition in equity in the Fulton circuit court in which the appellants were made defendants and in which it was averred that the petition filed by the defendants on August 26, 1926, had not been filed in time to be an appearance at the September, 1926, term of the Fulton circuit court; and that that action could not be heard or determined until the January term, 1927, of the Fulton circuit court; and that a delay in the decision of the question as to the validity of the election of August 21 would prevent the plaintiffs from maintaining a high school in the Cayce school district for the current school year, and they asked that judgment be entered determining the validity of the election under the Declaratory Judgment Act.

The three pending suits were consolidated, and being submitted on the pleadings and exhibits the court adjudged that the election held on August 21, 1926, was valid. From that judgment this appeal is prosecuted.

The first question with which we are confronted is this: Was chapter 80 of the Acts of the General Assembly of 1926 repealed by chapter 82 of the Acts of the General Assembly of 1926? Chapter 82 of the Acts of 1926 expressly repealed sections 4458, 4459, 4460, 4461, 4462 and 4463b of the Kentucky Statutes, all of which relate to subdistrict taxation, and was approved on March 22, 1926. Chapter 80 of the Acts of 1926, under which the election in question was held, repeals and re-enacts sections 4458, 4459, 4460, 4461 and 4463b of the Kentucky Statutes, and was approved on March 26, 1926. This act carried an emergency clause and became effective immediately after its passage and approval by the Governor. Chapter 82 of the Acts of 1926 contained no emergency clause and by the terms of the Constitution it took effect 90 days after the adjournment of the General Assembly and therefore took effect after the act known as chapter 80 of the Acts of 1926.

It is a well established rule of interpretation that statutes enacted at the same session of the legislature should receive a construction, if possible, which will give effect to each. They are within the reason of the rule governing the construction of statutes in pari materia, and they should be read together and should not be construed as inconsistent if they can be fairly read otherwise. Vaughan v. Roberts, 192 Ky. 364, 233 S.W. 733; Green, Auditor v. Taylor, Jr. & Sons, 184 Ky. 739, 212 S.W. 925.

In People v. Wabash Railway Company, 276 Ill. 92, 114 N.E. 552, it was held that it has always been a maxim in the construction of statutes that where two acts are seemingly repugnant they should be so construed that the latter may not operate as a repeal of the former by implication, and in all such cases if a construction can reasonably be given by which both acts will stand it will be adopted. The court also approved the rule that an act going into effect immediately will prevail over an act passed before it but going into effect later. In Perrault v. Robinson, 29 Idaho 267, 158 Pac. Rep. 1074, it was held that the rule that statutes in pari materia should be construed together applies with peculiar force to statutes passed at the same session of the legislature; they are to be construed together and should be so construed, if possible, as to harmonize and give force and effect to the provisions of each.

In Lambert v. Board of Trustees, 151 Ky. 725, 152 S. W. 802, American Annotated Cases, 1915A, p. 180, the

case of Heilig v. City Council of Puyallup, 7 Wash. 29, 34 Pac. 164, was cited with approval, wherein the court said:

"But we are also of the opinion that where two conflicting acts upon the same subject matter are passed at the same session of the legislature, and their conflict is such that they cannot be harmonized and stand together, and one of them contains an emergency clause and the other does not, that one containing the emergency clause must be taken to overcome the other. The simple fact of there being an emergency clause would tend to show that the subject matter of the act was more clearly and pointedly before the legislature than the subject matter of the other act. In this case the second act has the additional argument in its favor that it was actually passed by both houses of the legislature after the first one."

We conclude, therefore, that the legislature intended only to repeal the aforementioned sections as they appeared in Carroll's Kentucky...