Riggs v. Stephens

• Decision Date: 18 February 1892
• Citation: 92 Ky. 393,17 S.W. 1016
• Parties: Riggs et al. v. Stephens, County Superintendent. Garvey et al. v. Dulaney et al.
• Court: Kentucky Court of Appeals

17 S.W. 1016

92 Ky. 393

Riggs et al. v. Stephens, County Superintendent.

Garvey et al. v. Dulaney et al.

Court of Appeals of Kentucky.

February 18, 1892

Appeals from circuit court, Kenton county.

"To be officially reported."

Actions by Kate Riggs and others against H. P. Stephens, county superintendent of schools, and by J. P. Garvey and others against R. K. Dulaney and others, heard together. From judgments for plaintiffs in both cases, defendants appeal. Affirmed.

Holt C.J.

These two actions involve substantially the same questions. They will therefore be considered together. One seeks by mandamus to compel the common-school commissioner of Kenton county to pay to the trustees of the Erlanger graded free-school district a pro rata portion of the common-school fund in his hands for that county derived from the state. The other enjoins, upon behalf of certain tax-payers, the collection from them of a tax which it is claimed had been voted for the establishment of the school. The lower court dismissed the action for a mandamus, and enjoined the collection of the tax. It has been frequently decided by this court that legislation providing for the conversion of an ordinary common-school district into a free graded one, and the payment to the latter of the pro rata of the common-school fund going to the common-school district, is constitutional, because it is in aid of our common-school system, and not a diversion of the fund devoted by our constitution to that purpose. Trustees v. Harrodsburg Educational Dist., 7 S.W Rep. 312; District v. Webb, 89 Ky. 12 S.W. 298. It is claimed that no tax for the establishment of the school has ever been voted in conformity to the general law approved May 4, 1888, under which the election was held. 1 Acts 1887-88, p. 194. This is necessary under the law for its establishment. The purpose of voting a tax, as declared by the act, is to establish and maintain the school. Only the legal white voters can vote at the election. Whether it be an ad valorem or a poll tax, or both, its collection is therefore confined to the white voters. Sections 5 and 16 provide: "If it shall appear that a majority of the legal white voters entitled to vote at said election, under the common-school laws of this state, cast their votes at the said election in favor of said tax, then it shall be the duty of the county judge to cause the certificate of the examining board, showing the amount of the tax voted, the amount for which bonds may be issued, and the names of the six trustees elected, to be entered of record in the order-book of his court, and, by and with the assistance of the county superintendent of common schools in said county, to organize a graded free school in said district, town, or city in accordance with the provisions of this act. The county superintendent for common schools shall annually pay to the treasurer of any graded free-school district that may be organized and operating in his county, in conformity with this act, the pro rata portion of the per capita of the state and county funds that may be the due of said district, according to the number of pupils therein between the ages of six and twenty years of age, as soon as the same shall come into his hands." The petition in the mandamus case avers that at the election ""it appeared that a majority of the legal white voters" voted for the tax, which in this instance was an annual ad valorem one of 15 cents upon each $100 worth of property. Waiving whether this amounts to an averment that a majority did vote for it,-and, even if it does not, the defect is cured, because the answer denies they did,-yet the answer sets out affirmatively that 33 or 34 votes were cast for it, 26 against it, and 10 voters, whose names are given, did not vote. No reply was filed, and, by reason of the non-denial of the statements of the answer, it stands admitted that "a majority of...