170 Ky. 627 | Ky. Ct. App. | 1916
Opinion op the Court by
Affirming in part and reversing in part.
In the year 1910, a petition was presented and filed in the Bourbon county court, by the requisite number of tax payers, requesting that an election be held in a designated' boundary for the establishment and maintenance- of a graded school in the boundary, and the election of trustees therefor, in accordance with Article X., Sec. 4464, Kentucky Statutes, and the sections following, of the article named. The county court fixed the boundary of the proposed district, and made the orders required for holding the necessary election. In the order of the county court submitting to the voters the proposition to establish the district, the taxes proposed to be levied were a poll tax of one dollar and fifty cents upon each white male inhabitant, over twenty-one years of age, who resided in the district, and an ad valorem tax of thirty-five cents upon each one liundred dollars’ worth of property owned by white persons or corporations in the district assessed for taxation. The order of the county court provided, that twenty-five cents of the ad valorem tax upon each one hundred_ dollars’ worth of the assessed taxable property was to be' applied to the maintenance of the school and the remaining ten cents was to be applied to the purchase, erecting or repairing suitable buildings, if necessary, for the conduct of the school. The district was duly established, a board of trustees elected and installed in office, and a school opened and maintained since that time. The value of the property taxable for the purposes of the school is
“No county, city, town, taxing district or other municipality shall be authorized or permitted to become indebted, in any manner or for any purpose, to an amount' exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose; and any indebtedness contracted in violation of this section shall be void. Nor shall such contract be enforcible by the person with whom made; nor shall such .municipality ever be authorized to assume the same.”
It has been repeatedly held that the inhibition in the section of the constitution, supra, against the creation or assumption of debts applies to school districts. Com. v. L. & N. R. R. Co., 105 Ky. 206; and others. In the application of the constitutional inhibition to taxing districts and municipalities of every kind, it has uniformly been held, that the municipality can, in no event, incur or assume an indebtedness in excess of the revenues for that year, without the assent of two-thirds of the voters, voting at an election held for that purpose and an attempt to do so is void and without effect. Overall v. City of Madisonville, 125 Ky. 654; Harper v. City of Catlettsburg, 31 R. 293; Town of Bardwell v. Harlin, 118 Ky. 232; Brown v. Board of Education, 108 Ky. 783; Perry v. Brown, 21 R. 344, and others. The appellees concede that they were without authority to create the debts as an obligation against the district; that the individuals to whom the debts were owing could not have, in any event, coerced their collection from the district; and in fact they contend that they in contracting the indebtedness did not undertake to create a debt against the district, and the re
The debts complained of in this action seem to have been for a laudable purpose and the making of the improvements were matters within the discretion of the trustees, if they had not overstepped the boundaries of their authority in creating debts in excess of the constitutional limit, but it is only the excess of the debts above the revenues and income which is void, and it appears that there was a surplus of the income and revenue for the year, after the necessary expenses of maintaining the school and interest on prior debts had been paid, and to such an extent the debts were not void. Troutman v. Hays, 101 S. W. 976; Bardwell v. Hardin, 80 S. W. 770; Carroll v. Madisonville, 125 Ky. 696.
Further, it is contended by appellants, that because the county court, in the order made by it providing for the establishment of the district, divided the taxes to be levied and assigned twenty-five cents upon the one hundred dollars of the value of the property assessed for taxation, for the maintenance of the school, and ten cents of the thirty-five cents authorized, for the purchasing, erecting and maintenance of the buildings, that the income and revenues, which could be applied to erecting and repairing buildings, was limited to the sum which could be realized from the ten cent rate, and that no more of the taxes could be used for such purpose. In this view, we can not concur. The statute provides that the taxes authorized to be levied and collected may be used by the trustees for the maintenance of the school and to purchase or repair or erect the necessary buildings in which to conduct it. Section 4464, Kentucky Statutes. The county court was without authority to divide the revenues arising from the authorized levy and to designate a portion of them to any specific purpose. Such a provision obstructs the proper exercise of the discretion of the trustees. Hence, the trustees are authorized to .use any part of the revenue arising from the entire tax rate for either maintaining the school or providing buildings, which is within a sound
The cause is remanded for proceedings consistent with this opinion.