Underwood v. Wood

• Decision Date: 05 May 1892
• Parties: Underwood et al. v. Wood, Superintendent of Public Schools, et al.
• Court: Kentucky Court of Appeals

19 S.W. 405

93 Ky. 177

Underwood et al. v. Wood, Superintendent of Public Schools, et al.

Court of Appeals of Kentucky.

May 5, 1892

Appeal from circuit court, Taylor, county.

"To be officially reported."

Petition of J. D. Underwood and others to enjoin H. L. Wood superintendent of public schools, from paying certain funds. Judgment for defendants. Plaintiffs appeal. Reversed.

PRYOR J.

J. R Robinson, a resident of the county of Taylor, being interested in having good schools in his county, and particularly within the district in which he lived, erected at his own expense, and on his own land, a large school building, sufficient to accommodate and seat comfortably more than 150 pupils. He had the institution chartered, and called the "Taylor Academy." It was and is a higher grade of school than the ordinary common schools of the state, and the evidence purpose of this philanthropic man was to elevate the standard of education in his county, and benefit his people by furnishing from his academy teachers better qualified for teaching than are usually found in the common schools. If this case only involved the question of liberality and benevolence on the part of Robinson, the judgment below would be at once affirmed; but other questions are presented, and among them one involving the right of the legislature to take a part of what is known as the "school fund of the state" from one of the school districts of Taylor county, and appropriate the money to the payment of the tuition of certain children living within the school district, but taught under a special contract by the teachers of the academy; that contract being made with Robinson, the principal trustee, and owner of the college building. The act incorporating the academy in substance provides that Robinson may contract with the parents of children residing within the common school district for teaching their children, and the parent or parents making such contracts, paying doubtless a higher price than the amount of the ordinary school tax, are exempt from the burden of maintaining, furnishing, or repairing any schoolhouse for and during the school years their children may be sent to the Taylor Academy. There are not less than 350 children within the common school district, (two of the districts having been consolidated,) and out of this number, by the provisions of the act, Robinson can select such as he may desire to attend his school, by making a contract with their parents; and having done so, these children attending the academy get their part of the common school fund, to be paid to the teachers of the college, and in this manner diverting the fund from the common school to the payment of teachers in an individual enterprise, and relieving its patrons who live within the district from the burden of taxation imposed for building and keeping in repair the school buildings erected for common school purposes.

In the case of Halbert v. Sparks, reported in 9 Bush, 259, this court held that the school fun could not be appropriated in such a manner. This case, however, is a more palpable violation of the provision of the constitution in reference to the school fund than Halbert v. Sparks. The patrons of the college within the district who send their children to the academy are relieved from the burden of maintaining and keeping in repair the school buildings; and, in the second place, they are given the benefit of the school fund in proportion to the number of children sent to the academy, the number not to exceed 100. It is also reasonable to assume that the parents of the children attending the academy are in a better condition to assume the burden of taxation imposed to aid in building school houses than those whose children are attending the common school. The principal of the academy, being left to contract with the parents, would of course select those who are able to pay, and when relieving them from taxation, and at the same time giving them a part of the school fund, place the burden of building and repairing school buildings...