Taylor v. Board of Trustees , 197 Ky. 773 ( 1923 )

Opinion of the Court by

Chief Justice Samrson—

Affirming.

Appellant, C. W. Taylor, suing as a citizen, taxpayer and freeholder, of the Greenville graded common school district for -and on. behalf of all other taxpayers in s'aid district, prayed an injunction restraining the board of trustees of the said school.district from issuing and selling bonds of the district for the purpose of building and improving the school property of said district and from levying any tax in excess of $1.25 on each and every $100.00 worth of taxable property owned by white persons in said district, with- which to pay said bonds- and create a fund to pay the interest and create a .sinking fund to pay the bonds at maturity.

The petition states that prior to January 2, 1923, school buildings in said district had become -so out of repair and inadequate that it was necessary for the board of -education in order to provide suitable- building apparatus and equipment for the-, needs, of the school children in said district, to provide means by which a new and suitable building for their use could be constructed, and that in order to provide the necessary buildings and rooms for said purposes the said board caused to be entered an -order calling an.-election to be held in said city, at which election the question of whether -o-r not the sai-d district would issue and 'sell bonds, in the sum of $24,0-00.00, as provided by section 4477, Acts' of 1922, which will be found on page 47 of the Acts of 1922. It is further .averred in the petition that the election was duly called and held and' that 428 persons qualified to vote in said election participated in said election by casting their ballot, of which number 386 voted in favor of the bond issue and .only 42 of said persons- voting at said election voted against said bond issue; that the results of -said -election were held and properly certified as required by statute, and a copy of said certificate furnished to M. C. Hughes, -superintendent of public schools for Muhlenberg county; that the school board duly assembled at the office of the board in Greenville January 15, 1923, for the purpose of and did canvas the returns of said election, and thereupon issued a certificate reciting and declaring the result as aforesaid; and the board thereupon ordered bonds for the district to issue in the sum of $20,000.00 to be used for furnishing s-cho-ol buildings and apparatus; that the taxable property of said district owned by white persons amounts to over $1,2-30,000.00, and that the board -of education had theretofore levied for the purpose -of maintaining and operating the said school in the said district the- sum of $1.25 upon each $100.00 worth of taxable property within the said district owned by white persons, and also the highest poll tax on all male persons allowable under the law; that no part of the proceeds of said levy of $1.25 ad valorem or poll tax could be devoted by the board to the creation of a sinking fund and the interest on the proposed bonds; that the said board exceeded its authority in undertaking to levy in addition to the highest rate allowable by law, $1.25 on each $100.00 worth of taxable property owned by white persons in said district, at least an additional twenty-five cents on each $100.00 worth of said property for the purpose of creating a sinking fund and raise money to pay the interest on the said bonds; that the said levy of twenty-five cents for ¡said purpose is unlawful and beyond the power of the said board of education; that because of the inability of the board to provide a sinking fund and interest fund for the said bonds, no bonds could be issued, because there were no means provided for the payment of either the interest or the principal at maturity; that the said election is and was void for the reason that the board had already exercised its full powers of levying and collecting taxes for the current year and had devoted the same to a purpose other than provided for the payment of interest or sinking fund charges on the proposed bond issue; because the district ha® no fund and no means of raising funds, for the reason above -set out, with which to pay the interest and sinking fund charges on said bonds. It is further shown by the petition that the public spirited citizens of the town of Greenville had raised by subscription before the election the sum of $37,000.00,’ which was to be devoted in conjunction with the bond issue to the building of proper school structures, and that the .said sum unduly and improperly influenced many persons to vote for the said bond issue in order to -obtain the benefits of said subscription amounting to about $37,000.00, which were conditioned upon the voting of the said bonds; that unless -enjoined and restrained from so doing the board of education would issue the s-aid bonds and sell the same in violation of law -and in excess of its lawful authority levy at least twenty-five cents on each $100,00 worth of taxable property owned by said persons in said district in excess of its lawful taxing* power.

The trial court .sustained a general demurrer to the petition and upon appellant’© failure to further plead, the petition was dismissed, and he appeals.

It is admitted by appellant that the election was regularly called and held and that more than two-thirds of the voters voting at said election voted in favor of the said bond issue. The act of 1922, section 4476, found on page 45 of the said act, provides as follows:

“Boards of trustees of graded common'school districts are hereby authorized and empowered to levy each year not later than the last Saturday in June, a tax for establishing, maintaining and operating the common schools of thieir respective districts, at a rate not less than'twenty-five (25c) cents, and not to exceed one dollar and twenty-five ($1.25) cents upon each one hundred ($100.00) dollars of taxable property within the district and owned by white person©; .and also, a poll tax on each white male inhabitant within the district over twenty-one (21) years of age, not exceeding two dollars1 ($2.00); and shall also levy a sufficient amount to provide for the payment of interest and for sinking fund purposes for the next fiscal year, and the tax accruing from so much of said levy as is made for the payment of interest and sinking fund purpose©.shall be by said board of trustees at once irrevocably .set 'aside and used for these purposes and not otherwise; and said interest and sinking fund provisions as above provided shall include the interest and the sinking fund for the entire outstanding bonded indebtedness of said board.” From this section it is apparent that the board of .education may not only levy $1.25 ad valorem on each $100.00 of taxable property of white persons living in the district for maintainance purposes but may also1 levy a poll tax of not exceeding two dollars ($2.00) on each male white person over twenty-one years of age, and also a .sufficient amount to provide for the payment of interest and for sinking fund purposes for the next fiscal year, which said last named fund shall be irrevocably set aside for the payment of interest and the formation of a sinking fund to take up bonds at maturity. It therefore appears that the board of .education did not exceed its authority in levying the twenty-five cents (25c) on each one hundred ($100.00) dollars of taxable property of white persons in the .district, to be used to pay interest on the bonds and to create -a sinking fund to take up the bonds at maturity.

As it is admitted by appellant that tbe board of education of tbe district bad a right to submit tbe question of whether tbe district should issue bonds to tbe amount of $20,000.00 for the purpose of erecting school buildings, as provided by section 4477, Acts of 1922, page 47, we perceive no reason why tbe bond® may not be properly issued by the said board as said board has already provided for the fund® to pay the interest upon tbe bonds and to create a sinking fund to absorb them at maturity.

It appearing that the election was properly called and hleld and the bond issue carried by more than two-thirds majority, and that a sinking fund is provided from which tbe interest on the bonds may be paid' as it accrues, and tbe said bonds, liquidated at maturity, there is no reason why tbe board of education may not issue tbe bonds as it was, about to do at the time of the institution of this action. Tbe trial court properly sustained tbe demurrer to tbe petition.

Judgment affirmed.