Sherrard v. Jefferson County Bd. of Ed.

• Decision Date: 18 December 1942
• Citation: 294 Ky. 469
• Parties: Sherrard v. Jefferson County Board of Education et al.
• Court: United States State Supreme Court — District of Kentucky

Page 469

294 Ky. 469

Sherrard v. Jefferson County Board of Education et al.

Court of Appeals of Kentucky. Chancery Branch, Second Division.

December 18, 1942.

1. Action. — The same strictness in pleadings and practice is not required in proceedings under Declaratory Judgment Act as in other cases, and the pleading is sufficient if it shows a bona fide controversy exists between parties and the facts and subject matter out of which it arises (Civil Code of Practice, sec. 639a — 1 et seq.).

2. Action. — The State Board of Education was not a "necessary party" to taxpayer's action under the Declaratory Judgment Act against county board of education seeking a determination as to constitutionality of provision of school law that pupils attending private school should have same right to transportation as pupils of public schools (Civil Code of Practice, sec. 639a — 1 et seq.; Acts 1940, c. 66, amending Ky. Stat., sec. 4399-20).

3. Action. — In taxpayer's action under Declaratory Judgment Act against county board of education seeking a determination as to constitutionality of portion of school law requiring that pupils attending private school be granted same transportation rights as are provided for pupils of public schools, the fact that question involved was of state-wide interest and affected all local school boards and the pupils thereof did not require that State Board of Education be made a party to action (Civil Code of Practice, sec. 639a — 1 et seq.; Acts 1940, c. 66, amending Ky. Stat., sec. 4399-20).

4. Action. — In taxpayer's action under Declaratory Judgment Act seeking a determination as to constitutionality of portion of school law requiring that pupils attending private school be granted same transportation rights as pupils of public schools, fact that chancellor refused to declare parties' rights did not preclude reviewing court from making a declaration of rights in view of importance of public question involved (Civil Code of Practice, sec. 639a — 1 et seq.; Acts 1940, c. 66, amending Ky. Stat., sec. 4399-20).

5. Schools and School Districts. — The term "common schools," as used in constitutional provisions requiring general assembly to provide for an efficient system of common schools and providing that no sum should be collected for education other than in common schools until question of taxation was submitted to legal voters, means public or free schools maintained by the state at public expense, as distinguished from any private, parochial, or sectarian school (Constitution, secs. 183, 184).

6. Schools and School Districts; Taxation. — The portion of school law requiring that pupils attending private school be given the same transportation rights as pupils of public schools violates constitutional provision requiring that taxes be levied and collected for "public purposes" only and that no sum should be collected for education other than in "common schools" until question of taxation is submitted to legal voters, as against claim that statute was for the aid of children, and not private schools. Acts 1940, c. 66, amending Ky. Stat., sec. 4399-20; Constitution, secs. 171, 184.

Appeal from Jefferson Circuit Court.

Robert Hubbard for appellant.

Johnson & Johnson and Henry M. Johnson for appellee.

Before Gilbert Burnett, Judge.

OPINION OF THE COURT BY JUDGE RATLIFF.

Reversing.

This case involves the question of the constitutionality of Chapter 66 of the 1940 Acts of the General Assembly of Kentucky, entitled:

"An Act to amend and re-enact Chapter 65, Article V, Section 15 of the Acts of the General Assembly of 1934, by appending a clause to Section 15 (Section 4399-20, Carroll's Kentucky Statutes, 1936) providing for the transportation of school children attending schools other than public schools."

Among other things, the Act provides that:

"Schools shall be maintained for pupils of elementary grade within a reasonable walking distance of their homes or the board of education shall furnish transportation from its general funds or otherwise for any elementary pupil or pupils who do not reside within such distance, and any board of education may provide transportation from its general funds or otherwise for any pupil or pupils of any grade or grades who do not live within a reasonable walking distance from the school; * * *. Pupils attending private schools shall be entitled to the same rights and privileges as to transportation to and from school as are provided herein for pupils of public schools."

The appellant, a citizen, resident, and taxpayer of Jefferson County, Kentucky, questioning the constitutionality of the Act, brought this action in the Jefferson circuit court under the Declaratory Judgment Act, section 639a — 1 et seq., of the Civil Code of Practice, against the Jefferson County Board of Education asking for a declaration of rights of the parties and that the Act be declared unconstitutional. Plaintiff alleged that the General Assembly of Kentucky did amend section 4399-20, Carroll's Kentucky Statutes, 1936 edition, by appending thereto the words "Pupils attending private schools shall be entitled to the same rights and privileges as to transportation to and from school as are provided herein for pupils of public schools," and that the real purpose and intention of the General Assembly by said amendment was and is to divert the common and public school funds to the support of sectarian, private and parochial schools, contrary to and in violation of sections 3, 5, 59, subsection 25, 171, 184, 186, 188 and 189 of the Constitution of Kentucky; that the members of defendant Board of Education can, may or might divert the public school funds raised by taxation or otherwise for the purpose of common and public schools of Jefferson county and the State of Kentucky to channels not intended by and contrary to the Constitution of Kentucky. He further alleged that an actual controversy exists between him and the defendant Board of Education and the members thereof as to whether or not the aforesaid Act is, or is not, contrary to the above mentioned sections or any provision of the Constitution of Kentucky, plaintiff contending that it is contrary to the Constitution and therefore void, and defendants contending that it is not contrary to any provisions of the Constitution and is therefore constitutional. Later plaintiff filed his amended petition naming Honorable John W. Brooker, State Superintendent of Public Instruction, and other members of the State Board of Education, parties defendant. Before any defense was made by the State Superintendent of Schools or the State Board of Education, plaintiff dismissed the action as to them without prejudice. The defendants, members of the Board of Education, filed their answer denying that the Act was unconstitutional and claimed that it was a valid exercise of police power and that children attending private schools were merely complying with compulsory education laws of this State and were under the supervision of the State Board of Education and that the Jefferson County Board of Education was merely fulfilling its statutory obligation in transporting children or pupils to private schools, and the Act was for the aid of the pupils and not for the aid of the schools. The answer also prayed for a declaration of rights, and that the Act be held valid. An agreement was then entered controverting of record all affirmative allegations of both parties. Upon a hearing of the case the court refused to declare the rights of the parties and, of its own motion, dismissed plaintiff's petition without prejudice, and granted an appeal to this court. The chancellor filed an opinion setting out his reasons for refusing to declare the rights of the parties and dismissing the action, the principal reason being that the State Board of Education was a necessary party to the action.

If there exists a defect of parties such as to prevent the court from determining the rights of the parties, then it would become the duty of this court to remand the case to the circuit court. The question is whether such defect of parties really exists. A similar question or contention was made in the case of Board of Education of Louisville v. City of Louisville et al., 288 Ky. 656, 157 S.W. (2d) 337, 342, which case involved the Teachers' Retirement Act (Acts of the 1938 General Assembly, 1st Ex. Sess., Chapter 1). In that case it was insisted that there was a defect of parties because the beneficiaries of the Teachers' Retirement Fund were not made parties thereto, and the circuit court declined to declare the rights of the parties because of this alleged defect. In disposing of that question we said:

"* * * It would have been better had they been made parties, either individually or by representation. Declining to declare the rights was within the discretion of the circuit court. Section 639a — 6, Civil Code of Practice. Ordinarily, we would follow the same course, but an important public question is involved which should be decided as early as practicable, and, under the view we have, an adjudication will not adversely affect the rights of the beneficiaries. So we shall dispose of it. This is in accordance with the spirit and purpose of the Declaratory Judgment Act. Section 639a — 1 et seq., Civil Code of Practice."

Section 639a — 6, Civil Code of Practice, being part of the Declaratory Judgment Act, provides that this court in its consideration of a case shall not be confined to errors alleged or apparent in the record. It appears that under the provisions of the Declaratory Judgment Act the same strictness in pleadings and practice is not required as may be required in other cases. The pleading is sufficient if it shows that a bona fide controversy exists between the parties, and the facts and subject matter out of which it arises. As was said in the case cited supra, it might have been better had the State Board of Education been made parties defendant. B...