171 Ky. 692 | Ky. Ct. App. | 1916
Opinion op the Court by
Reversing.
The Board of Council of the city of Winchester prosecutes this appeal from a judgment of the Clark circuit court compelling it by a writ of mandamus, awarded at the suit of the Board of Education of the city of Winchester, to amend the tax levy made in July, 1916, for school purposes, by increasing it from 40 cents, as then fixed, to 48-J cents on each hundred dollars of taxable property in the city of Winchester.
As the total assessed value of all property in the city subject to taxation for the year 1916 is $5,793,480.00, the levy of 48-J cents ordered by the judgment of the circuit court for school purposes would produce for the year 1916 a fund of $28,967.40, whereas the levy of 40 cents that was actually made in July, would make only $23,173.92. Winchester is a city of the fourth class, and section 3595, Kentucky Statutes, imposes upon the board' of education of a city of the fourth class the duty of annually reporting to the board of council of the city within thirty days prior to the time prescribed for the levy, not only an estimate of the expenses of maintaining the public schools of the city for the current fiscal year, but also to report all of its resources. The difference between the estimated total of expenses and the total of the resources is the amount for which the board of council is required to make a levy. It appears from the record before us that the board of education, on the 7th day of July, 1916, made to the board of council of the city of Winchester the following report:
“To the Board of Council of the City of Winchester, Ky. Gentlemen: We, the duly elected officers of the
Superintendent’s, teachers’ and other salaries ................................................................... $30,000.00
Repairs to buildings ............................................. 1,500.00
Furniture and apparatus .................................. 1,000.00
Fuel and lights .......................................................... 1,000.00
Stationery and printing..................................... 350.00
Insurance ......................................................................... 500.00
Books, library, etc....................................,........... 250.00
General expenses ....................................................... 2,000.00
New buildings ............................................................. 2,000.00
Making a total of ...............................................................$38,600.00
Of this sum we will receive from the' State, etc., about-....................................................................................$10,000.00
Leaving the City’s part............................................................ 28,600.00
“We respectfully request that the Board of Council make the necessary levy, and collect the tax to cover these necessary expenses, if necessary up to the legal limit.
•“Respectfully submitted,
“C. IT. Rees,
“President of the Board of Education.
“W. O. Parrish,
“Secretary of the Board of Education.”
It will be observed that the above report fails to state whether the board of education had any endowments, bonds, money or other resources available for use in defraying the expenses of the common schools of the city of Winchester for the current fiscal year. It is, however, alleged in the petition that the board of education has no bonds upon which it will receive any interest, no endowments or other investments from which it will .derive any profit or income, and that such a tax levy by the board of council of the city upon the taxable property therein should be made as would produce the sum of $28,600.00, which, with the $10,000.00 paid by the State, would meet all expenses necessary for the maintenance of the public sehools for the current fiscal year.
The reply to the answer denies that the board of education had on hand a surplus of $6,000.00, but admits that it had in its treasury, available for the present fiscal year, the sum of $5,416.25, and alleges that as the revenue that will be derived from city’ taxes for the present year will not be available until about November 1st and the public schools begin early in the month of September, the $5,416.25 already in the treasury of the school board will be required for paying teachers’ salaries and other expenses of maintaining the schools during the months of September and October.
The single question to be determined on the appeal is, should the $5,416.25 surplus left in the hands of the board of education of Winchester after defraying all of the expenses of maintaining the common schools for the previous year, be included as a part of the amount of $38,600.00 its reported estimate shows will be required to pay all expenses of maintaining the schools for the current or present fiscal year? If it be decided that this question should be given an affirmative answer it would necessarily follow that the appellant board of council committed no error in limiting the tax levy to the 40 cents fixed by it, as the amount thereby realized for school purposes would, with the $5,416.25 in the hands of the board of education and the $10,000.00 to be
The board of education seems to take the position that it was not compelled to report any cash which it may have had in its treasury, and that the board of council in making the required levy had no legal right to take into consideration the amount of cash on hand and available for the present school year. We do not concur in either of these conclusions. The duty required of each of these boards is defined by section 3595, Kentucky Statutes, which provides:
“Said board (board of education) shall, within thirty days prior to the time prescribed for the levy to be made in the charter of cities of the fourth class, approximately ascertain the amount of money necessary to be used to defray the expenses of maintaining the schools, improving or constructing buildings, et cetera, thereof, and any liquidation of the liabilities during the current fiscal year, and report the same, together with the estimated amount to be received from the common school fund of the State, interest on bonds, endowments, et cetera, to the city auditor or clerk, who shall thereupon report the same to the city council, and the said city council shall make the necessary levy, and collect the tax to provide suitable school buildings, and to defray the general expenses necessary for school purposes: Provided, Thar the levy for any one year shall not exceed that fixed by law on each $100 of value of taxable property in the city, as returned by the board of equalization. Said tax shall be paid to the board or authorized agent of same, as fast as collected.”
Manifestly the meaning of the statute is that the board of education shall report to the board of council,
The taxpayers of the city have certain rights which neither the board of education nor the board of council can ignore, and it would be unjust to compel them to pay in taxes the sum of $5,416.25 when the board of education already has it in hand, and which sum, together with the $10,000.00 to be received from the State, and the $23,183.75 which would be realized under the levy of 40 cents made, will, according to its own estimate, suffice for the maintenance of the common schools for the present year.
In thus holding it is not our purpose to abandon the rule declared in Board of Education, etc. v. Townsend, Mayor, et al., 140 Ky. 248; Fiscal Court of Logan Co., et al. v. Board of Education of Logan County, 127 S. W. 527, and perhaps other cases, that the legislature, by placing the public schools of cities in the hands of boards of education did not mean that either the city, the board .of council or the courts should control them, but it 'meant to make the boards of education entirely inde!pendent, and also make it the duty of the council to levy a tax sufficient to meet the board’s demands, not to exceed the limits prescribed by law. But while this is true, •the board of education cannot complain that the board of council, in fixing the tax levy for school purposes, does not exceed its own estimate of the amount required.
The conclusion here expressed is sustained by the .opinion in the case of the Board of Education of New
“While it is the duty-of the board of commissioners to levy a tax sufficient to produce the amount requested by the board of education for the maintenance of the public schools, yet the board of commissioners has the right to insist that the board of education, in estimating the amount required to be raised by the city, shall take into consideration its estimated revenue from other
The instant case furnishes a stronger reason for refusing the writ of mandamus than was shown in the ease, supra, for in the latter case the delinquent taxes which it was held should- constitute a part of the resources in estimating the amount required by a tax levy for the maintenance of the schools, had not at the time the report was made been actually received by the board of education; whereas here the $5,416.25 which the board of council insists shall be estimated as a part of the resources of the board of education was at the time its report was made, actually in the hands of its treasurer.
The reason given by way of argument in the reply for appellees’ failure to report the cash balance of $5,416.25 in its treasury as a part of the resources available for the maintenance of the public schools, is that it should not be so included because it has been its custom to carry over such balances from year to year in order to pay the teachers and provide fuel for the school buildings for the two months of September and October intervening between the beginning of the term and the date, November 1st, when the collection of city taxes can be enforced. This contention may be sufficiently
By the statement previously made in the opinion, that the amount realized from the levy made by the council of 40 cents on each hundred dollars of taxable property of the city, together with the $5,416.25 in the treasury of the board of education and the $10,000.00 paid by the State, will “substantially reach” the amount required by the board of education, viz.: $38,600.00, it was meant that it will come within $9.83 of doing so; and as the amount requested by the report of the,board of education is only an approximate estimate, it may not be consumed by the total expenditures when actually made. At any rate, the small deficit of $9.83, should there be such deficit, would not authorize an increase in the levy already made by the board of council, or the granting by the court of a mandamus to compel such action on its part. On the contrary, the maxim De minimus non curat lex would more properly apply.
For the reasons indicated the judgment is reversed and cause remanded, with directions to the circuit court to refuse the writ of mandamus prayed and dismiss the petition.