190 Ky. 357 | Ky. Ct. App. | 1921
Opinion of the Court by
Reversing.
John Moore, a citizen, taxpayer and a patron of the colored schools of Pineville, brought suit against the city of Pineville, the members of its board of council, and the board of education and its members, and asked for a mandatory injunction compelling the defendants “to take the necessary steps to provide for the education of all colored school children entitled thereto, and a suitable building for that purpose, and otherwise provide for the same, the same benefits as provided for white children.” Subsequently an amended petition was filed, statijig in substance that at a meeting of the board of education of the city held on July 20, 1920, the board adopted a resolution imposing and levying for school purposes for the year 1920 a tax of $1.50 per $100.00 on all real and personal property subject to taxation in the city of Pineville, and a poll tax of the amount of $2.00 on each male inhabitant of said city over 2Í years
The suit is based on an act defining boundaries for 'school districts embracing cities of the fourth class, and providing systems of schools in such districts, etc., approved March 13, 1920, and constituting chapter 14, Acts 1920. The act places the control of the schools in the fourth class cities in one board of education, except in certain cases, and it is admitted that Pineville does not come within any of the exceptions. Section 18 of the act provides that the colored schools or children shall be entitled to the same benefits, be governed by the same rules and regulations, and be subject to the same restrictions as the schools provided for white children. Section 19 of said act is in part as follows:
“Said 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 which will be necessary to be used to defray the expenses of maintaining the schools, including a sinking fund, repairs and improvements of buildings, and any liquidation of liabilities falling due during the current fiscal year, and conducting the business intrusted to the board during the current fiscal year over and above the ampunt due it by the state as provided in section 21, and shall enter the same upon the minute book of the board; and power and authority is hereby conferred upon such board of education to impose and levy ad valorem taxes upon all real and per
“The said board of education shall adopt a resolution imposing- and levying an ad valorem tax upon all the real and personal property subject to taxation and assessed by said city or county for general purposes at such rate, but not exceeding- one dollar and fifty cents on the $100.00 valuation of said property, and a poll tax not exceeding. the amount of $2.00 on each male inhabitant over twenty-one years of age in said district as shall, in the opinion of said board, be neóessary to produce in that year the total sum necessary to be raised to support and maintain the public schools .of said district less the estimated sum to be received from the state common school fund and shall also levy a tax for sinking fund purposes, and said resolution shall be forthwith certified under the seal of the city board of education to the general council or the board of commissioners of said city, and where such district includes territory outside of such city to the fiscal court of said county, and said levy at the rate so fixed and certified shall be, by said general council or board of commissioners or the said fiscal court, added to and included in the regular tax bills of the city containing the ordinary levy, and said city shall, by proper ordinance, make such levy as also the said fiscal court shall make such levy and it shall be collected with the same by the same officers and in the same manner and at the same time as ordinary taxes for said city or county are collected by the collecting officers of the city. ’ ’
.Section 19 concludes as follows:
“If in any year the board shall fail to pass the resolution and make the certificate and request as aforesaid, the general council or its board of commissioners
There being np appeal therefrom, that portion of the judgment refusing ap injunction against the board of education is not subject to review.
Plaintiff’s right to sue was raised by special demurrer. It appears from the petition not only that plaintiff was a citizen and taxpayer of the city, but that he was a colored person with two children of school age entitled to attend the colored school, and that he brought the.suit in his own behalf and for the benefit of all other colored people who were bona fide residents of the city. Under the well established rule in this state, an action for mandamus or mandatory injunction must be prosecuted by the proper public officer when the right or duty in question affects the state in its sovereign capacity as distinguished from the people at large, but, if the general public as distinguished from the state in its sovereign capacity is affected, any citizen may sue out the writ or obtain a mandatory injunction. Gay v. Haggard, 133 Ky. 425, 118 S. W. 299.
One of the questions raised is that the Constitution forbids the imposition of a tax upon the property of white citizens for the support of the colored schools. There is no merit in this contention. Section 187 of the Constitution provides: “In distributing the school fund, no distinction shall be made on account of race or color, and separate sohnols for white and colored children shall be maintained.” It is true that the legislature has, in certain instances, provided that local school taxes shall be levied upon the property of white citizens for the support of the white schools and on the property of colored citizens only for the support of colored schools, but there is nothing in the constitutional provision requiring this to be done, or depriving the legislature of the power to provide that local taxes, both for white and colored schools, may be levied upon all the property of the city or district, as is the case in many municipalities.
Another contention is that section 19, supra, authorizes the board of education to levy annual taxes solely for the purpose of repairing and improving the existing buildings, and not for the purpose of erecting new buildings. Any d,oubt on this question arising from the language of section 19 is certainly removed by section 20,
It will be observed that section 19 makes it the duty of the board of education, within thirty days prior to the time for the levy to be made in the charter of cities of the fourth class, approximately to ascertain the amount of money which would be necessary to be used to defray the expenses of maintaining the schools, including a sinking fund, repairs and improvements of buildings, and any liquidation of liabilities falling due within the current fiscal year, and conducting the business intrusted to the board during the current fiscal year over and above the amount due it by the state as provided in section 21, and to enter the same upon the minute book of the board. While the act dpes not require the estimate so made to he certified to the general council as was formerly the case, it seems to us that the act imposes upon the board the mandatory duty to make the estimate and enter it upon its minute book. The manifest purpose of the act was to let the people know how much money would have to be raised by taxation to support the schools, and to fix in a general way the purposes for which the money so raised should be expended.' Otherwise, the board, without taking any official action showing the necessity for such a levy, and without making apy apportionment, could always levy the full amount authorized by the act and thereafter devote it to purposes other than those contemplated when the levy was made. We therefore conclude that before the board is empowered to make the levy, or to require the general council or fiscal court to include taxes so levied in their regular tax bills, it should make the estimate required by the act and enter the same upon its minute book.
Another question to be determined is when the levy made by the board shall be certified to the general council. The act plainly contemplates that this should be done within thirty days prior to the time prescribed by the charter for the levy to be made by the general council. All property is valued as of April 1st, section 3535, Kentucky Statutes, and the taxes are due on July 1st,
The petition was also defective in that it never alleged that the general council had failed or refused to comply with the resolution of the board.
It follows that the demurrer interposed by the city and the members of the general council should have been sustained, and the injunction refused. •
Judgment reversed and cause remanded for proceedings not inconsistent with this opinion.