179 Ky. 34 | Ky. Ct. App. | 1918
Opinion op the Court by William:
Reversing.
Mattie J. J ohnson, a young colored woman possessing • the requisite qualifications, applied for the position of teacher in sub-district E, Educational Division No. 5 of Daviess County. Her application was approved and she was recommended by J. E. Wood, trustee in sub-district 9, which includes a portion of the colored sub-district. On the first Saturday in June, 1916, all the sub-district trustees constituting the division board No. 5, met in that district for the purpose of electing eleven-teachers for the
Mattie J. Johnson brought this suit against Evie Richardson, Lou Murray, the colored visitor, R. L. McFarland, county superintendent, and certain members of the division board to recover possession of the schoolhouse and to enjoin the defendants from interfering with her in performance of her duties as teacher. During the proceedings the county board of education was made a party defendant. Plaintiff was granted the relief prayed for, and the defendants appeal.
The present school law may be found in Chapter 24, Acts 1916. Section 95 of that act, in so far as it is material to this controversy, is as follows:
“Teachers — Employment of. — It shall be the duty of the subdistrict trustee to nominate and recommend in writing to the'.division board one or more teachers for each school in his sub-district, and with said nomination and recommendation he shall convey the teachers’ credentials and any objections, remonstrances or petitions that may be offered, in writing, to the election of said teacher or teachers, and the board shall elect for each sub-district a teacher or teachers nominated by the trustees thereof, when such teacher possesses the necessary qualifications and no reasonable objection is offered.
Should the division board reject any nominátion or should any trustee fail to nominate for his sub-district, the chairman of the division board shall immediately notify such sub-district trustee and request further nominations.
The division board in each educational division shall meet for the consideration of applications and the election of teachers on the first Saturday in June and July in each year, and any vacancy existing for any cause in
Section 107 is as follows:
“Colored Visitors — Election.—At the same time and place and by the election officers who conduct the election for sub-district trustees, an election shall be held for the purpose of electing a visitor for the colored school or schools.of the sub-district. Such a visitor shall be nominated- and elected in the same manner as the sub-district trustee, save that the nominating petition shall be signed by colored voters, and that colored voters alone shall be eligible to vote for such visitor. So far as the colored school or schools of the sub-district are concerned, the duties of the visitor shall be identical with those of the sub-district trustees, save that such visitor shall not be a member of the division board. ’ ’
Since the duty of nominating all teachers in a sub-district formerly devolved upon the sub-district trustee, and since the legislature provided by section 107, supra, that so far as the colored schools were concerned, the duties of the visitor should be identical with those of the sub-district trustee, save that such visitor shall not be a member of the division board, there can be no doubt that the duty of nominating colored teachers for his sub-district now devolves upon the colored visitor. But it is argued that as the meeting of the division board was fixed by law, and the colored visitor for the sub-district in question failed to. attend or to make any recommendation, he thereby waived his right to do so.
There might be some merit in this contention if section 95, supra, had not provided that ‘£ Should the division board reject any nomination or should any trustee fail to nominate for his sub-district, the chairman of the division board shall immediately notify such sub-district trustee and request further nominations.” Indeed the precise question was before this court in the ease of Educational Division Board No. 1, of Floyd County, et al., v. Butler, 155 Ky. 164, 159 S. W. 679. There the sub-district trustee was not present at the meeting of the division board in June and made no recommendation. Notwithstanding this fact, Josie Harris was elected teacher. At an adjourned meeting of the board, the trustee recommended Elizabeth Butler, and she was thereupon elected teacher in the place of Josie Harris. It was
But it is argued that section 107 is unconstitutional in that it is local, special and discriminatory and therefore violates sub-section 25, section 59, of our constitution, and section 3 of the Bills of Rights, as well as the fourteenth amendment to the Federal Constitution. This argument proceeds on the theory that the colored race is N given .both a visitor and a trustee, while the white race is discriminated against in that it is given only a trustee. Clearly the act is not local because it is applicable to the entire state and not merely to a particular part of the legislative jurisdiction. Nor is the act special in that it applies to particular persons or things of a class or is based on a false or deficient classification. Our constitution clearly provides for the maintenance of separate schools for white and colored children, and neither subsection 25 of section 59 of our constitution providing that the General Assembly shall not pass local or special acts to provide for the management of common schools, nor section 3 of the Bills of Rights prohibiting the grant of exclusive privileges except in consideration of public services, nor the fourteenth amendment to the Federal Constitution providing that no state shall deny to any person within its jurisdiction the equal protection of the law prohibits a classification based upon color and the employment of separate agencies to accomplish that result. Wall v. Osyter, 36 App. Cas. (D. C.) 50, 31 L. R. A. (N. S.) 180; Berea College v. Commonwealth, 123
So far as concerns the claim that the statute in question discriminates against the white race, we might have rested our decision on the ground that appellee was not a member of that race and could not therefore raise the question. Commonwealth v. Wright, 79 Ky. 22, 42 Am. Rep. 207, 6 R. C. L., page 91, but in view of the general importance of the question and of the further fact that the constitutionality of the act is attacked on other grounds, we have deemed it proper briefly to consider all the grounds urged against its validity.
Judgment reversed and cause remanded, with directions to dismiss the petition.