129 Ark. 185 | Ark. | 1917
Appellees were the plaintiffs in the court below, and their complaint contained the following allegations : That they were citizens, residents and taxpayers living and residing in a common school district in Howard County, adjoining School District No. 36 of Pike County, which, district, through its .directors, was made a defendant, and that each of the plaintiffs had children of scholastic age who were entitled to the common school privileges. That they and their children, with their school taxes, had been regularly transferred from a school district in Howard County to an adjoining district in Pike County, which had since been organized into a rural special school district, since which time the children cf plaintiffs had been denied the privileges of the district into which they had been transferred, and the plaintiffs themselves had been denied the right to vote in the school elections or to a voice in the annual school meeting, and the school directors have announced their intention to continue to deny to the children of the plaintiffs the privileges of the school of the district and to deny to the plaintiffs themselves the right to vote at the school election or to participate in the annual school meeting. There was a prayer that the directors be enjoined from the execution of this alleged illegal purpose.
A demurrer was interposed to this complaint, which was overruled, and the defendants elected to stand upon their demurrer, and final judgment was rendered in favor of appellees, and this appeal has been prosecuted to reverse that decree.
The parties agree that the controlling question in the case is the constitutionality of the act of May 23,1901 (Acts 1901, page 354), which appears as section 7642 of Kirby’s Digest. This section is as follows:
“Section 7642. Whenever any person or persons transfer from one school district to another school district across a county line, it shall be the duty of the directors of said district to which said person or persons have transferred to allow all qualified electors that have trans: ferred across the county line to vote in said school election the same as if he lived in the same county; and when a tax is levied the directors shall notify the county judge in the county where said transferrers live the amount of taxes levied and the names of all taxpayers who have transferred into said district across the county line, and the county judge shall cause the levy to be made. It shall be the duty of the collector of taxes to collect the school tax from said person or persons who have transferred and to turn it over to the treasurer of his county, and the treasurer shall notify the directors of the school district w'here said transfer was made the amount of taxes in his hands to their credit, and said directors shall draw their warrant on said treasury for the same, and he shall pay said warrant to the amount of all in the treasury to their credit in the same manner as if the said directors lived in his county. Any officer wilfully violating any of the provisions of this act shall be fined in any sum not to exceed twenty-five dollars.”
It will be observed that this section affords authority for the transfer of children across a county line into another district, along with the taxes due by the parent of the children thus transferred, and the section confers upon such parent the right to vote in the district to which his children and taxes are transferred, notwithstanding the fact that no change of residence has taken place. '
There had previously been legislation of substantially similar purport enacted by the sessions of the General Assembly of 1891 and 1897. See sections 7639, 7640 and 7641 of Kirby’s Digest.
The Legislature conferred upon the county court the authority to make the necessary transfers when proper petitions had been filed, and vested the court with a discretion in passing upon such petitions. We think it clear, from the. history of this legislation, that the provisions of this act of 1901 (section 7642 of Kirby’s Digest) are separable, and that the entire act will not fail because the Legislature may have, in some respects, transcended its power. Davis v. State, 126 Ark. 260, 190 S. W. 436.
Has the Legislature transcended its authority in any respect in the enactment of the legislation under review?
If there was ever any doubt about the fact that electors only could vote at school elections, that doubt would be dispelled by the amendment, adopted by the vote of the people at the last general election authorizing the vote of twelve mills for local school purposes. It is there provided that this may be done by a “vote of the qualified electors of such district.” An enabling act, passed by the General Assembly at its 1917 session, has made this amendment to the Constitution effective.