197 Ky. 465 | Ky. Ct. App. | 1923
Opinion op the Court by
Overruling motion of plaintiffs to dissolve injunction, and granting injunction on motion of defendants.
Plaintiffs, Hoskins, et al., claim to be three of the regularly qualified and constituted members of the Board of Education óf Pikeville Public Schools, which district included not only the city but additional territory lying beyond the corporate limits; while the defendants, Ramsey, etc., deny plaintiffs’ claim and assert defendants were elected in November, 1922, and have since qualified, and say that defendants are three of the members of said board, having taken the places of the plaintiffs, Hos-kins, et al., whose terms expired December 31, 1922. By section 3587a-9 Kentucky Statutes, it is provided that “At the election occurring in the month of November, 1920, a new board of education, consisting of six members, shall be elected as herein provided, and such board shall, after having qualified by taking the oath prescribed by law, assume office on the first day of January, 1921. . . . Within one week after the organization of said board it shall meet to divide its members by lot in such manner as they shall determine into two classes, as follows : The first class, consisting of three members, shall hold office through the 31st day of December, 1922, and the second class, through the 31st day of December, 1924. At the election every two years thereafter an election shall be held to fill the term of the members of the board of education, whose term will expire on December 31st following, and the members so chosen shall hold office for four vears or until their successors are elected and qualified. ’ ’
The three plaintiffs, Hoskins, et al., were elected in November, 1920, and took office January 1, 1921, for a term of two years each, having drawn the short terms. By the provisions of the statutes above quoted their sue
It is the contention of plaintiffs, Hoskins, et al., that members of the board of education of fourth class cities, or other municipalities, could not, under section 148 of our Constitution, be elected in November, 1922, because at said regular election a member of Congress was chosen, and the attempted election of the defendants, Ramsey, etc., was void and of no effect and their attempted qualification a nullity. That part of the constitutional provision upon which' plaintiffs rely for the disqualification of defendants, reads: “All elections of state, county, city, town or district officers shall be held on the first Tuesday after the first Monday in November; but no officer of any city, town or county, or of any subdivision thereof, except members of municipal legislative boards, shall be elected in the same year in which members of the House of Representatives of the United States are elected. District or state officers, including members of the General Assembly, may be elected in the same year in which members of the House of Representatives of the United States are elected.” From this provision it is argued by plaintiffs that the attempted election of defendants at the regular election in November, 1922, being prohibited, was void, and although the term of plaintiffs, as fixed by the statute, expired December 31, 1922, they remain in and continue to hold office as de facto officers and were éntitled, as against defendants, whose election was void as contended by plaintiffs, to continue to hold said offices. This contention does not appear to be tenable when considered in the light of sections 155 and 183 of the Constitution, the first of which reads: “The provisions of sections 145 and 154, inclusive, shall not apply to the election of school trustees and other common school district elections. Said elections
The 183rd section of the Constitution, reading: "The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the state,” expressly provides for the establishment of an efficient common school system by the General Assembly and thus confers upon it full power to pass such laws as may be necessary to accomplish that purpose. If, as we have held, all elections affecting schools are exclusively under legislative control and are not included in the franchise and election articles of our Constitution, then the provisions of section 3587a-9 are valid, and such choosing of members of the school board not coming within' the purview of the constitutional provisions of sections 145 to and including 154, are not elections within the meaning of the Constitution, and not being elections may be held with and at the same time of a general election and on the same day on which members of Congress are chosen. In other words, the selection of members of a board of education by ballot, as provided in section 3587a-9, is not an election within the meaning of sections 145 to and including section 154 of the Constitution; or if such choosing of the members of school boards be such election, the officers so chosen are not officers of a city,
The fact that one of the defendants elected in November, 1922, resided outside of the corporate limits of the city of Pikeville, did not disqualify him in view of the fact that he resided and had his domicile within the school district. Kentucky Statutes, section 3587a-9.
It, therefore, follows that members of the board of education may, for the two reasons stated, be chosen at an election held upon the same day as that at which members of Congress are chosen. Prom the foregoing it necessarily results that the motion of plaintiffs to dissolve the injunction granted by the judge of the Pike circuit court must be and is overruled, and the defendants, on motion, are granted a permanent injunction against the plaintiffs and each of them, enjoining and restraining them, and each of them, from interfering with the defendants, and each of them, in the exercise of the duties of their respective offices as members of the board of education of the Pikeville graded school district aforesaid, and from holding and controlling the records and books of the said board, and from attempting to exercise any of the duties of a member of the said board of education. A majority of the court concurring.