Nichols v. Henry

• Decision Date: 27 November 1945
• Citation: 301 Ky. 434,191 S.W.2d 930
• Parties: NICHOLS et al. v. HENRY.
• Court: Kentucky Court of Appeals

191 S.W.2d 930

301 Ky. 434

NICHOLS et al. v. HENRY.

Court of Appeals of Kentucky

November 27, 1945

Rehearing Denied Feb. 8, 1946.

Appeal from Circuit Court, Fayette County; Chester D. Adams, Judge.

Action by Susan B. Henry against William E. Nichols, County Judge Fayette County and others for a declaratory judgment to declare unconstitutional an act providing supplemental transportation along highways for children attending school. From a decree for plaintiff, defendant appeals.

Reversed and remanded.

Samuel H. Cole and I. J. Miller, both of Lexington for appellant.

A. M Hall, of Lexington, for appellee.

Lafon Allen, of Louisville, John B. Rodes, of Bowling Green, Leo T Wolford and Robert T. Burke, both of Louisville, James B. Milliken, of Cincinnati, Ohio, and William A. Minihan, of Lexington, amici curiae.

HARRIS Justice.

This is a declaratory judgment proceeding by the appellee, a resident taxpayer of Fayette County, against the Fiscal Court of Fayette County to test the constitutionality of Chapter 156 of the 1944 Acts of the General Assembly, now carried as KRS 158.115.

With its title and preamble included, the Act reads:

'An Act to promote the public welfare, comfort, health and safety by providing supplemental transportation along highways, which have no sidewalks, for children attending school in compliance with the compulsory school attendance laws.

'Whereas, the safety of all children is greatly endangered by their walking along highways without sidewalks to and from school and their health is greatly endangered in inclement weather;

'Whereas, such bus transportation is now furnished to children attending the common schools and can be furnished with little or no additional cost to children attending schools other than common schools under the compulsory school attendance laws of the Commonwealth of Kentucky and traveling the same routes:

'Whereas, the cost of present bus transportation to the common schools is paid out of school funds, but the cost of transportation to other schools approved under the compulsory school attendance laws, can legally be paid from general funds only,

'Now, in order to facilitate their compulsory attendance at some school and to give aid and protection to children on the highways.

'Be it enacted by the General Assembly of the Commonwealth of Kentucky:

'Each county may furnish transportation from its general funds, and not out of any funds or taxes raised or levied for educational purposes or appropriated in aid of the common schools, to supplement the present school bus transportation system for the aid and benefit of all pupils of elementary grade attending school in compliance with the compulsory school attendance laws of the Commonwealth of Kentucky who do not reside within reasonable walking distance of the school they attend and where there are no sidewalks along the highway they are compelled to travel; and any county may provide transportation from its general funds to suppplement the present school bus transportation system for the aid of any pupil of any grade who does not live within reasonable walking distance of the school attended by him in compliance with the compulsory school attendance laws and where there are no sidewalks along the highway he is compelled to travel.'

The petition alleged: (1) The Act is unconstitutional and void, in that it violates the provisions of sections 3, 5, 26, 171 and 180 of the Constitution. (2) The Act purports to authorize the use of county funds to furnish transportation to those pupils only who attend public school in compliance with the compulsory school attendance law--KRS 159.010 and 159.030; whereas pupils who attend private, sectarian and parochial schools do so by voluntary choice, by reason of which they are specifically exempted by KRS 159.030 from the compulsory provisions of KRS 159.010. (3) If the court should hold the Act to be constitutional, then transportation could be furnished only to county pupils who do not live within reasonable walking distance of the school they attend, and then only to the point where sidewalks are located at or beyond the corporate limits of the city of Lexington.

The appellee admitted, by answer, that an actual controversy existed and requested this court to make a binding declaration of rights between them and the appellant upon the three questions presented by the petition. They further requested the court to determine whether they could use the general fund then on hand to furnish transportation to pupils attending private, sectarian and parochial schools and, if so, whether on exhaustion of that fund they could levy a special tax for such transportation purposes.

The case having been submitted on the pleadings and the briefs of counsel, the chancellor adjudged: (1) The Act is in contravention of sections 3, 5, 26, 171 and 180 of the Constitution. (2) Those pupils who attend the private, sectarian and parochial schools of Fayette County do so in compliance with the compulsory school law, and not by voluntary choice. (3) The Act having been adjudged to be unconstitutional, the question whether transportation may be furnished only to pupils not living within reasonable walking distance of their school, and then only to the point where sidewalks are available, is moot. (4) No part of the general funds, nor any other funds of Fayette County, may be used to transport such pupils; nor may a special tax be levied for that purpose.

Section 5 reads: 'No preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity; nor shall any person be compelled to attend any place of worship, to contribute to the erection or maintenance of any such place, or to the salary or support of any minister of religion; nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed; and the civil rights, privileges or capacities of no person shall be taken away, or in any wise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall, in any case whatever, control or interfere with the rights of conscience.'

The Act does not encroach upon nor undertake to circumvent any of the inhibitions enumerated in this section. It constitutes simply what it purports to be--an exercise of police power for the protection of childhood against the inclemency of the weather and from the hazards of present-day highway traffic. The circumstance, argued by the appellee, that in Catholic schools the Catholic faith is taught and in Protestant schools the Protestant faith is taught, does not change the purpose or effect of the Act nor convert it into one which gives preference to a religious sect or society, or to any particular creed, mode of worship or system of ecclesiastical polity; neither does it undertake to compel any person to attend any place of worship or to contribute to the erection or maintenance of any such place, or to the salary or support of any minister of religion.

Section 26 simply provides that everything contained in the Bill of Rights is excepted out of the general powers of government and that all laws contrary to the Bill of Rights, or contrary to the Constitution, shall be void. The converse is, of course, that if a legislative enactment does not violate some other section, it is not unconstitutional by reason of anything contained in this section.

Section 180, so far as alleged by the appellee to be applicable, reads: '* * * Every act enacted by the General Assembly, and every ordinance and resolution passed by any county, city, town or municipal board or local legislative body, levying a tax, shall specify distinctly the purpose for which said tax is levied, and no tax levied and collected for one purpose shall ever be devoted to another purpose.'

In support of her contention that this section is violated by the Act, it is argued by the appellee that at no time has any tax ever been levied or collected by Fayette County for the purpose of furnishing transportation to pupils attending the private, sectarian and parochial schools of the county, and that the use of the county's general funds for such purposes would constitute an unwarranted diversion of those funds to purposes other than those for which the tax was levied and collected.

We cannot accept that argument. KRS 68.210 et seq. provides for the levy of a tax for general fund purposes, as well as for the transfer of money from one fund to another. When therefore, the Fiscal Court accepts the proposed budget and levies a tax for general fund purposes in accordance with the budget, the requirement of section 180 that the 'resolution passed by any county * * * levying a tax, shall specify distinctly the purpose for which said tax is levied,' is satisfied. Not only that: as soundly stated by the chancellor, on the authority of Overall v. City of Madisonville, 125 Ky. 684, 102 S.W. 278, 12 L.R.A.,N.S., 433, when the purpose for which a tax was levied has been accomplished, the surplus may be transferred to the general fund and be used for any purpose for which a tax might have been levied. Since all this is so,...