108 Ky. 783 | Ky. Ct. App. | 1900
Reversing.
This suit is brought to determine whether the board of education of a city of the second class has authority to become indebted in excess of its income for the year in which the indebtedness is created, and to issue bonds to fund such indebtedness without a submission of the question to a vote of the people. The law relating to the boards of education in cities of the second class is found in sections 3212-3285, Kentucky Statutes, and it is claimed on behalf of appellee that the Legislature -granted to the board power to contract debts by the provisions of section 3212, constituting it a body politic and corporate, with power to contract and be contracted with, sue and be sued, and to purchase, receive, hold, lease, and dispose of real aud personal property for public school purposes. . Section 3219 'provides that: “Said board shall annually, in the month of January, approximately ascertain the amount of money necessary to be used to defray the expenses of maintaining the schools, improving or constructing the buildings and so forth thereof, and any liquidation of the liabilities during the current fiscal year and report the same, . . . and thereupon .the general council, shall, at the request of the s-aid board, levy and collect such taxes as may be requested, and the money arising from said levy shall, under the direction and control of said board, be used for the benefit of the common schools, and for the purpose of paying off the indebtedness of said board.” Section 3228 provides that indebtedness existing at the time the act took effect shall not be impaired, and that “said board may refund any debt by the issuance of bonds.”
The last two sections recognize, it is claimed,— and, in our opinion, properly, — the power of the
Appellee maintains that the three sections 157, 158, and 159 establish a purpose to forbid indebtedness the payment of which can be enforced upon the assessable property within the taxing district incurring it; that the danger provided against was that of permitting a tax district to recklessly create indebtedness in one year which could be enforced by taxation in subsequent years, and that this danger does not exist in the case of boards of education of cities of the second class, for the reason that the city can not be required to levy the tax, as the creditor assumes the risk of the board of education being without means to pay, and that there is no legal obligation on the city to provide the income with which to pay such indebtedness. It may well be doubted whether bonds such as those provided for in this case could be sold were the prospective purchasers brought face to face with such a construction of the law. If the indebtedness can be created, we think there can be little doubt that it is made the duty of the board to request the imposition of the necessary tax to pay it, and equally the duty of the city authorities to levy and collect such tax, and that the performance of these duties can be compelled by legal process.
The contention is, in effect, that one arm of the government exercising delegated authority over a definite boundary has the power to contract the indebtedness, and another arm of the government exercising delegated authority within the same limits is required to collect the tax
A distinction is made by the text writers between municipal corporations and public corporations. Says Judge Dillon in his work on Municipal Corporations: “All corporat’ons intended as agencies in the administration of civil government are public, as distinguished from private corporations. Thus, an incorporated school district or county, as well as a city, is a public corporation; but the school district or county is not, while the city is, a municipal corporation. . . . The phrase ‘municipal corpora, tions,’ in the contemplation of this treatise, has reference to. incorporated villages, towns, and cities.” This distinction does not seem to be recognized in the present Constitution of this Commonwealth. The three sections under consideration seem to use the word “municipality” as covering not merely incorporated villages, towns, and cities, but counties and taxing districts, as has been held in the cases last referred to. There would seem to be no reason why the constitutional provision should not be applied to
But it is insisted that in the case of Woods v. Board (Ky.) 53 S. W., 517, this court has decided that a board of education of a city of the second class is not a municipality within the meaning of section 157 of the Constitution. It was not the intention of the court nor of the writer of the opinion to so decide. There was but one question presented, argued, or decided in that case, andi that was whether an indebtedness contracted after the adoption of the act for the government of cities of the second class could be refunded. It was agreed that the question to be determined was whether “the board of education has the power to refund, by the issuance of bonds.