Kuhn v. Board of Education
4 W. Va. 499
W. Va.
1871
Check Treatment
Moore, J.

This case involves two questions. 1st. The jurisdiction of a court of equity to interpose by injunction in such cases. 2d. The constitutionality of the act entitled “an act to establish the school district of Wellsburg, in the county of Brooke,” passed July 11th, 1868, by the legislature of this State. Acts ex. ses., 1868, p. 17. That a court of equity has jurisdiction in such cases, is fully sustained by authority. Bull et al. v. Read et al., 13 Gratt., 87. The answer to the second question is made equally definite by the same authority. We are not, however, sent adrift for authority to establish the constitutionality of said act. The constitution itself, Art. X, section 2, declares, “ The legislature shall provide, as soon as practicable, for the establishment of a thorough and efficient system of free schools.” The.establishment of such schools is, therefore, not merely permissive, but obligatory, on the legislature. The system *509“ pi-ovided for” by them is required to be “ thorough and efficient.” Who is judge of the thoroughness and efficiency? Certainly, the legislature. When the people, through the constitution, delegated that power to the legislature, they made the legislature sole judge of the kind or kinds of free schools that should be established and supported. It was not left to the caprice of an individual, or any number of persons that might be influenced by personal motives or local prejudice, but was wisely confided to the wisdom of the united representatives of the people who, coming from all sections of the State, could best devise a system “thorough and efficient.” Hence, we find, in the same section of the constitution, a power given to the legislature to “provide for the support of such schools by appropriating thereto the interest of the invested school fund; the net proceeds of all forfeitures, confiscations, and fines accruing to this State under the laws thereof; and by general taxation on persons and property, or otherwise.” Const., Art. X, sec. 2, clause 2. From this clause it is plain, the people intended that the “thoroughness” and “efficiency” of the system of free schools, adopted by the legislature, should in no wise be prejudiced by the want of ample means. They make it obligatory upon the legislature to provide for the support of such schools, not only “by appropriating thereto the interest of the invested school fund,” &c., but also by “general taxation on persons and property, or otherwise,” thus placing in the hands of the legislature, for that purpose, plenary, if not absolute, power. The third clause of the same section declares that the legislature “ shall also provide for raising in each township, by the authority of the people thereof, such a proportion of the amount required for the support of free schools therein, -as shall be prescribed by general laws.”

In conformity with the provisions of the said tenth article of the constitution, the legislature in 1863 established a general system of free schools. Chap. 187, Acts 1863. The first section of said general act declared that “ each and *510every organized township within the several counties of this State, or which may hereafter be organized within the same, is hereby constituted a school district to be confided to the care and management of a board of education as hereinafter constituted; but the city of "Wheeling, with parts of townships connected therewith, shall constitute but one district.’5 From this, it appears, the system established was one of districts, whether embraced by the boundaries of one township, or embracing within its own boundaries parts of several townships. To render the system efficient, it was necessary to establish a head or governing authority over each district; hence, for that purpose they provided, in the second section of said act for the election of three commissioners by the voters of the several townships, who, together with the clerk of the township (and their successors in office) were by the fourth section of said act constituted “a body corporate in law under the name and style of The Board of Education of the Township of-.”

By the general act of February, 1866, the district system was retained by authorizing the division of every township “into a suitable number of school districts,” (Acts 1866, p. 54, ch. 74, sec. 1) governed by an incorporated board of education. Idem, secs. 2, 3, 4. The amendatory act of 1867, (Acts 1869, p. 113, ch. 98,) and the Code of 1868, p. 290, ch. 45, secs. 9, 10, retain the system of districts; thus showing that the wisdom of the successive legislatures of the State approve of that system, as the most thorough and efficient, for the free education of the youth.

What are called “independent school districts,” as the one under consideration, although created by special acts, have, from their formation to the present, been specially recognized in the general acts; and notwithstanding the designation of “independent,” they nevertheless constitute a part of the general system, sanctioned by the legislature as the most efficient for a particular locality.

That the legislature had the power to establish the school district of Wellsburg, in the manner they have by said act *511of July 11th, 1868, seems evident-from the authority vested in them by the said second section, -tenth Article of the constitution. But if their authority under the said second section was questionable, they certainly h'ad ample power under the fourth section of said tenth Article, viz: “The legislature shall foster and encourage moral, intellectual, scientific, and agricultural improvement; they shall, whenever it may be practicable, make suitable provisions for the blind, mute and insane, and for ihe organization of such institutions of learning as ihe best interests of general education in the State may demand.” Con., Art. X, sec. 4. It stands in reason that the people, in conferring on the legislature so great a prerogative, intended that it should be the judge of what was necessary and proper “for the organization of such in-institutions of learning as the best interests of general education in the State may demand,” and have all powers, consistent with the principles of right and justice, as recognized and protected by the constitution, to provide the means for their support. The district schools, whether created by general or special acts, are institutions of learning, under the fostering care of the legislature. It is not our province to criticise the system adopted for the 'Wells-burg district, nor to judge of its efficiency; all we are called upon to do, is to ascertain whether the act creating it is in violation of the constitution or not? We think it is not. It does not alter the boundary lines of townships, as argued, it simply creates an institution of learning, having jurisdiction for school purposes only over a definite territory embracing one township and parts of two others, but not conflicting with said townships, in their municipal or police powers and rights. The township is a corporation for certain purposes; the district is instituted for as specific, though different purpose, and in that respect, and to that extent, they are distinct and independent corporations.

The mode prescribed by said act for raising the money for the support of the schools within said district, is not unconstitutional, because the money is levied for the “board *512of education,” elected by the voters, who are thus constituted the authority of the people in the districts for that purpose.

The counsel have raised many points in their arguments, indicating that said act violated the constitution, but notwithstanding the ingenious argument, coming with acknowledged force from able jurists, there does not appear that direct violation of the constitution, in the provisions designated in the argument, as would justify this court in declaring that the legislature had transcended its powers. In fact several of the points argued do not fairly arise from the record, and should not be considered.

From the foregoing view of the constitutional provision, and upon the principles decided in Godden v. Cramp, &c., 8 Leigh, 120; Bull v. Read, &c., 13 Gratt., 87; Wade, &c., and Thomas, &c. v. City of Richmond, 18 Gratt., 583; in which cases the leading authorities are fully discussed, and therefore not necessary to be reviewed in this case, we are led to the conclusion that the said act is constitutional; that the taxes and levies complained of by the plain tiff are legal, and should be collected; and that the assent of the plaintiff was not essential to the formation of said school district; that the legislature has the exclusive power to create such districts, even without the assent of the citizens therein, and did not exceed their authority in that respect when, by said act, they created a board of education consisting of three commissioners, who should “be elected by the qualified voters resident” in said district, and gave that board power to make the annual levies for building, school and expense funds. The consequences flowing from this creation of the legislative will, grievous though they may be to the plaintiff, can have redress only in the legislative will and discretion, and cannot be relieved by judicial supervision, unless the corporate authorities of this district exceed their corporate powers, or, the legislative will springs beyond the restricting limits of the constitutions, Federal or State. If the legislative will, in the creation of the district, *513operate harshly upon any citizen therein, the fault is in the constitution, and cannot be remedied by the judiciary; the appeal for redress must be either to legislative discretion, or to the people, from whom all such power, originates, and who alone can create organic law.

I am thus led to the opinion, that the circuit court properly refused the injunction prayed for in this cause, and was equally right in dismissing the bill; and that the order complained of should be affirmed, with costs to the appellee.

The other Judges concurred.

Order aeeirmed.