181 Ky. 574 | Ky. Ct. App. | 1918
Opinion of the Court by
Reversing.
The city of Dayton is a city of the fourth class and is governed by the provisions of the charter for cities of that class. The board of education of the city instituted this action against the members of its board of council and sought-a writ of mandamus against them, to require them to make a levy upon the taxable property of the city, sufficient to raise the sum of $18,800.00, which it was alleged to be necessary to defray the expenses of maintaining the common schools of the city, and in constructing, repairing and acquiring necessary buildings, therefor, and liquidating the'current expenses of the schools for the year, 1918, and the further sum of $1,200.00, which, it was alleged, was necessary to -be raised and had during the year, to pay the interest on bonds to the amount of $5,000.00, which were outstanding against the board of education, and to create a sinking fund to pay the principal of the bonds, which would become due in 1923. The bonds were issued, in the year, 1903, to pay expenses incurred for the construction, improvement and acquisition of buildings and property for the use of the schools. The $1,200.00 desired was reduced by subsequent pleadings, and the demand on account of money to pay interest on, and create a sinking fund to discharge the outstanding bonds was reduced to $800.00. It was alleged, that in accordance with section 3595, Ky. Statutes, the board of education did, within thirty days prior to the time, prescribed for the levy of taxes, to be made, in cities of the fourth class, “approximately ascertain” the amount of money necessary to be used to defray the expenses of maintaining the schools, improving and constructing buildings, etc., thereof, and to liquidate the liabilities of the management and operation of the schools for the current fiscal year, and to. pay the interest on and provide a sinking fund to liquidate the outstanding bonds, and had reported the same, together with the estimated sum to
The court adjudged, that the defendants, members of board of council, be required to levy and provide for the collection of a tax upon the taxable property of the city of such a rate, as would be sufficient to raise the sum of $18,800.00, as requested by the board of education to defray the expenses during the year, 1918, of. maintaining the common schools, which áre under its control, or so much thereof as a tax rate of fifty cents
It seems, that previous to the institution of the action, the board of council had enacted an ordinance levying -a tax of fifty cents, upon each $100.00, assessed value of the taxable property, to defray the expenses of the board of education in maintaining the common schools, and also to pay interest on bonds and to create a sinking fund for their liquidation, at maturity.
The appellee insists, that there is nothing in the record to be considered by this court, except the sufficiency of the pleadings to support the judgment, as there is no bill of exceptions, and hence the agreed statement of facts, which is a substitute for the testimony of witnesses heard in court, is not a part of the record, and hence can not be considered. The proceeding is an action at law, but, a bill of exceptions is not necessary to have each and every question considered upon appeal. The bill of exceptions is for the purpose of presenting to this court, alleged errors, with reference to matters, which transpired in the trial court, and which do not appear upon the record book of the trial court. In Postal Telegraph Cable Co. v. Louisville Cotton Oil Co., 136 Ky. 843, it is said: “It is not necessary to put in the bill of exceptions the pleadings, orders of court, or any motion or paper, that is mentioned in the orders of court as having been offered or filed as a part of the record, although it may not be copied on the record book, as the fact, that it is there mentioned is sufficient evidence of its identification to make it a part of the record for this court, when copied by the clerk, accompanied by his certificate.” In Broadway & Newport Bridge Co. v. Com., 173 Ky. 165, it was held, that where a case had been tried, in the circuit court, upon an agreed statement of facts, which was .reduced to writing, and showed to have been filed, in open court, by an
The only question presented by the. record, as it is made up, is whether the pleadings and evidence are sufficient to support the judgment. The petition seems to be sufficient. The only issue presented in the pleadings, which will be considered, is the one relating to the approximate ascertainment of the needs of the board of education, together with a statement of its available resources, and the report of same to the board of council. When such ascertainment is made and reported to the board of council, as required by section 3595, Ky. Stat., the legal duty is then imposed upon the council to make a levy of taxes sufficient to meet the demands of the board of education, within the rates of levy permitted by law, unless the board of council can show that the members of the board of education acted corruptly or in bad faith, or that they embraced in their demands, items, which are not authorized by law. City of Owensboro v. Board of Trustees, 10 R. 40; Provose v. Board of Education of Christian County, 120 S. W. 307; Fiscal Court of Logan County v. Board of Education, 127 S. W. 527; Board of Education of Bowling Green v. Townsend, 140 Ky. 248. The demand, however, must be a proper one, and to be a proper one, it must be made after an approximate ascertainment of the needs of the board of education, and an ascertainment and estimated statement of the resources of the board, on hand, or to
This conclusion, however, does not invalidate the levy which the board of council did make for the year, 1918, as it could waive a regularity of the demand.
The judgment is therefore reversed, and cause .re-< manded for proceedings not inconsistent with this opinion.