Pollitt v. Lewis

• Decision Date: 25 June 1937
• Citation: 269 Ky. 680,108 S.W.2d 671
• Parties: POLLITT v. LEWIS et al.
• Court: Kentucky Court of Appeals

108 S.W.2d 671

269 Ky. 680

POLLITT v. LEWIS et al.

Court of Appeals of Kentucky

June 25, 1937

As Modified on Denial of Rehearing September 28, 1937.

Appeal from Circuit Court, Boyd County.

Suit by Paul D. Pollitt against Blaine Lewis and others, members of and composing the Board of Education of Ashland, Ky. and others. From a judgment for defendants, plaintiff appeals.

Reversed.

A. W Mann, of Ashland, for appellant.

Dysard & Tinsley and Porter M. Gray, all of Ashland, for appellees.

STITES Justice.

This is an appeal from a judgment of the Boyd circuit court by which it sustained a demurrer to and dismissed the plaintiff's petition and likewise made a declaration of rights of the parties. Pursuant to chapter 23 of the Acts of the Fourth Special Session of the General Assembly of Kentucky for 1936-37, the board of education of the city of Ashland has determined to organize and maintain a junior college in that city. In furtherance of this project, it was determined to acquire a site and construct a building for the use of the junior college, through the organization of a private corporation known as the Ashland Junior College Corporation. It is proposed that this corporation will acquire the site and construct the building from the proceeds of an issue of $40,000 in bonds and shall lease the property to the board of education for one year at a stipulated rental sufficient to amortize the bonds, and, in addition, the said board is to pay the costs of insurance, maintenance, and taxes. The board is likewise given an option to renew the lease from year to year, in accordance with a stipulated schedule of annual rentals. It is likewise agreed that, upon the payment of the bonds and accrued interest thereon, the property will be conveyed to the board.

This suit was filed by a taxpayer to enjoin the board of education and others involved in the project from carrying out the proposed plan. The only questions here argued relate to the constitutionality of chapter 23 of the Acts of Fourth Special Session of the General Assembly for 1936-7. It is insisted (1) that the tax authorized by chapter 23 is a tax imposed for municipal purposes, in violation of sections 181 and 181a of the Constitution; and (2) that a junior college is not a common school within the meaning of section 184 of the Constitution, and no provision is made in the act for the submission to the voters of the question of taxation for the support of the college. The act simply provides that the legislative body of the city shall levy a tax of not less than 5 nor more than 7 cents on each $100 of taxable property when requested so to do by the board of education. No provision is made for submission of the question of taxation to the electorate.

The short answer to appellant's first contention is that the act does not attempt to impose a tax for a municipal purpose or, indeed, to impose a tax at all. It leaves open to the local school board the option to establish or not to establish a junior college. If they determine to establish such an institution, then they may require the council to impose a tax within maximum and minimum limits for this purpose. City of Louisville v. Commonwealth, 134 Ky 488, 121 S.W. 411; District Board, etc. v. City of Lexington, 227 Ky. 7, 12 S.W.2d 348; Fox v. Board of Louisville, etc., Home, 244 Ky. 1, 50 S.W.2d 67.

A more serious question is presented by the second contention made by appellant. Section 184 of the Constitution, so far as it is pertinent here, provides:

"No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters, and the majority of the votes cast at said election shall be in favor of such taxation: Provided, The tax now imposed for educational purposes, and for the endowment and maintenance of the Agricultural and Mechanical college, shall remain until changed by law."

It is manifest that the very wording of the provision of section 184 quoted imports that there are schools of a character different from common schools as mentioned therein. It is equally clear that the framers of the Constitution must have had in mind that they were placing a limitation upon legislative power to expend money for education other than in common schools. If the term "common schools" had a definite meaning in the minds of the draftsmen of the Constitution, it is our duty to give it effect. We must always recognize that we are construing and not constructing that instrument. Though we may disagree with its philosophy, we cannot alter its mandates.

No provisions of the Constitution can well be said to have provoked more discussion and feeling than those relating to the subject of education and particularly to section 184. (See Debates, Constitutional Convention, 1890, Vol. III, p. 4454 et seq.) As originally submitted by the Committee on Education, the section later made section 184 provided, in part:

"No sum shall be raised or collected for education except in the common schools, until the question of taxation is submitted to the legal voters, and a majority of the votes cast in favor of taxation."

An immediate hue and cry ensued, particularly from the friends of the State University, then the Agricultural and Mechanical College. Mr. Jacobs, of Boyle county, as chairman of the committee, in the course of his remarks in submitting the report said:

"A majority of the Committee thought if we departed from our common school method of education, and which has prevailed in the State since 1838, and the taxes for which have always been heretofore levied by popular vote; first of two cents, and then some years afterwards of three cents, and then in 1867 of fifteen cents, making twenty cents in all, and the State desired to add to its system of education what we usually term higher education, that the tax to support higher education, ought to be supported by a popular vote."

W. M. Beckner, of Clark county, was the first of a number of others taking up the gauntlet. In behalf of the minority of the committee, he said, in part:

"The Chairman, in effect, forbids aid to normal schools, the Agricultural and Mechanical College, the Institute for the Deaf and Dumb or the school for the blind, unless approved by a vote of the people. This was aimed at the college, but it certainly embraces the other institutions which are for educational purposes." In arguments too long to be incorporated in this opinion, it was urged that the effect of the adoption of the quoted portion of the committee's report would close the doors of the State University, the normal school, and other institutions of "higher education" until a vote of the people could be obtained. Finally, a substitute amendment was offered by Mr. Nunn, of Crittenden county, bringing the phraseology more nearly to the final form of section 184. In speaking to this amendment, Mr. Nunn urged that there should be a limitation upon the power of the Legislature in making appropriations for the institutions outside of the common school system, and said:

"Hence, the necessity of putting into this provision that, before the Legislature of the State of Kentucky can enter into higher education, it must submit the proposition to the people of the State for their ratification. At the bottom of the substitute I provide that all taxes now levied for educational purposes shall remain as now until changed by law. That saves the half cent tax to the A. & M. College, and all the taxes imposed for educational purposes, until the Legislature sees proper to change it."

Without a further extension of this opinion with quotations from the numerous arguments of the members of the Constitutional Convention relating directly to this subject, it...