BOARD OF ED. OF JEFFERSON CO. v. Board of Education

472 S.W.2d 496, 1971 Ky. LEXIS 200

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: June 18, 1971
• Status: Published

Opinions

VANCE, Commissioner.

At issue is the constitutionality of Chapter 189 (House Bill 158) of the Acts of the General Assembly of Kentucky at the 1970 Session now codified as KRS 160.047 and 160.049.

Before the enactment of House Bill 158, the transfer of adjacent areas from one school district to another was controlled in every county in the state by KRS 160.045. House Bill 158 exempted counties containing a city of the first class from the provisions of KRS 160.045 and created a new procedure for transferring adjacent areas from one school district to another in those counties.

The basic differences in the two procedures concern (1) the method in which a proposal to initiate a transfer may originate (2) the discretion that may be exercised by school administrative authorities regarding the propriety of a transfer, and (3) the mechanics of adjusting and settling equitable terms for the transfer.

Following the enactment of House Bill 158 a petition was filed with the Jefferson County Fiscal Court seeking the transfer of a described area from the Jefferson County School District to the Louisville Independent School District. The fiscal court referred the petition to the Board of Registration and Purgation to determine if the requisite number of voters had signed the petition.

At this juncture, the Jefferson County Board of Education filed this action attacking House Bill 158 upon two constitutional grounds. It claimed that the Act constitutes local or special legislation in violation of Sections 59 and 60 of the Constitution of Kentucky and that the Act runs afoul of the separation of powers doctrine in that it imposes upon the judiciary a nonjudicial function.

The pertinent parts of Section 59 of the Constitution read as follows:

“The General Assembly shall not pass local or special acts concerning any of the following subjects, or for any of the following purposes, namely: * * *.

“Twenty-fifth: To provide for the management of common schools. * *.

“Twenty-ninth: In all other cases where a general law can be made applicable, no special law shall be enacted.”

Section 60 of the Constitution provides :

“The General Assembly shall not indirectly enact any special or local act by the repeal in part of a general act, or by exempting from the operation of a general act any city, town, district or county; * * *”

These provisions of the Constitution clearly prohibit any local or special act with reference to the management of public schools or in any case where a general law can be made applicable.¹ Likewise the General Assembly is prohibited from indirectly enacting special legislation by the exemption of a county from the operation of a general law.

A local act is one confined to territorial limits other than that of the whole state or one which is applicable to some political subdivision and not to others. A special law is legislation which arbitrarily or beyond reasonable justification discriminates against some persons or objects and favors others. City of Louisville v. Klusmeyer, Ky., 324 S.W.2d 831 (1959).

Nevertheless, the General Assembly may indulge in class legislation if the classification is made to depend upon natural, real or substantial distinctions, inhering in the subject matter, such as suggest the necessity for or propriety of independent legislation in regard to the class specified. A classification based upon purely artificial, arbitrary or fictitious conditions is unreasonable and will not be permitted. Reid v. Robertson, 304 Ky. 509, 200 S.W.2d 900 (1947).

Section 156 of the Constitution of Kentucky permits classification of cities upon the basis of size alone for the purpose of their organization or government and matters relating thereto. In other cases classification of cities, and counties by size and population is permissible only if the size and population of itself has an appreciable relevancy to the subject matter of the legislation. Mannini v. McFarland, 294 Ky. 837, 172 S.W.2d 631 (1943); James v. Barry, 138 Ky. 656, 128 S.W. 1070 (1910) ; Droege v. McInerney, 120 Ky. 796, 87 S.W. 1085 (1905) and City of Louisville v. Klusmeyer, supra.

The repeated attempts of the General Assembly to enact legislation applicable to only a portion of the state based upon a classification of cities or counties containing cities of a specified class have precipitated a great volume of litigation. In James v. Barry, supra, and Mannini v. McFarland, supra, this' court reviewed the various factors relating to proper classification for legislative purposes. We said in James v. Barry and quoted with approval in Mannini the following:

“ ‘For certain purposes classification by population and its density are not only natural and logical, but any other basis would be unscientific and unsatisfactory. * * * But it was always pointed out, or plainly to be seen, that the legislation was also of a class which it was legitimate to classify upon the basis of population. On the other hand, instances have occurred where it was attempted to classify subjects by the sizes of cities where the question of the density of population had no appreciable relevancy to the subject. Such, for example, making a statute of six-month limitations to actions of tort or for salaries against a city of the first class, whereas the general law was one year, or five years. City of Louisville v. Kuntz, 104 Ky. 584, 47 S.W. 592. * * *

“ ‘When the subject-matter is purely one of municipal government, it is clearly competent for the Legislature to classify it alone upon number and density of population, as the Constitution implies if it does not expressly allow. When the subject is one that reasonably depends upon or affects the number and density of population as a correlative fact in the scheme of the particular legislation, then such classification is allowable. There are even perhaps other instances justifying such classification. But where the subject is one of general application throughout the state, and has been so treated in a general scheme of legislation, distinctions favorable or unfavorable to particular localities, and rested alone upon numbers and density of population, are invidious, and therefore offensive to the letter and spirit of the Constitution. * * * > »

In every instance when legislation is made applicable to a defined class, a question arises as to whether the classification of the objects of the legislation is reasonable and proper. As is often the case, it is impossible to formulate any one rule which is broad enough to cover all the various situations which may be presented. Of necessity each classification must be considered in the light of the facts peculiar to it.

The legislative classification in this case is by counties and those counties containing a city of the first class are placed in a separate classification. The object of the legislation is to provide a method for the transfer of adjacent areas from one school district to another. Whether the classification is reasonable and proper depends upon the determination of this question: “Does a county which has within its boundaries a city of the first class have such different circumstances and problems relating to the transfer of adjacent territories from one school district to another as to reasonably justify a separate procedure for such transfers applicable exclusively in such counties?” Reference to the Act in question clearly establishes that it provides a procedure for transferring areas from one school district to another in counties containing a city of the first class which is separate and distinct from the procedure which must be used in all the other counties.

Let us look at the differences in the procedure.

TRANSFERS IN COUNTIES NOT CONTAINING A CITY OF THE FIRST CLASS

1. The proposal to transfer territory may be initiated by either of the affected school boards or by petition of seventy-five percent of either the registered voters or property owners within the area.

2. If the boards of education of the affected districts fail to agree, either board may petition the Superintendent of Public Instruction for approval of the transfer. If the Superintendent of Public Instruction is unable to arrive at a satisfactory agreement with the two boards, either board may request that the matter be brought before the State Board of Education for hearing.

TRANSFERS IN COUNTIES CONTAINING A CITY OF THE FIRST CLASS

1. The proposal to transfer can be initiated only by filing a petition with the fiscal court containing signatures of twenty-five percent of the registered voters of the area. The affected boards of education may not initiate a proposed transfer.

2. If the petition is valid the matter shall be submitted to a vote and if approved by the voters of the area, the transfer shall be made. Neither of the affected boards of education nor the Superintendent of Public Instruction is permitted any discretion as to the propriety of the transfer. Once the transfer is mandated by the voters, if the affected boards of education cannot agree upon the terms of the transfer, the matter is submitted to the courts for settlement upon equitable terms.

What circumstances prevail in counties containing cities of the first class which justify a separate procedure? The appel-lee contends that the size of first-class cities creates special problems in that the growing population necessitates the creation of new schools and adequate space to locate new schools is not available within the limited boundaries of the independent school district. The location of new schools outside the district frequently leads to petitions for transfer of the area into the district.

Appellee also contends that the magnitude of the problems which must be faced in settling the terms of transfer of an area between a county and an independent school district is much greater in counties which contain a city of the first class than in other counties.

It may be conceded that the size and the growth of the population in counties containing cities of the first class may necessitate the transfer of adjacent areas from one school district to another more frequently than elsewhere but the fact that the problem arises more often does not of itself indicate that the general law enacted to deal with the problem is inadequate. Granted also that the magnitude of problems encountered in settling the terms of the transfer is greater, yet there is no showing that the administrative machinery for settling the terms of the transfer through the office of the Superintendent of Public Instruction and the State Board of Education as provided by the general law is inadequate. Cf. Nuetzel v. State Tax Commission, 205 Ky. 124, 265 S.W. 606 (1924).

If it is proper for the boards of education, Superintendent of Public Instruction and the State Board of Education to exercise some discretion regarding the propriety of transfers of adjacent territory from one school district to another in all counties except those containing a city of the first class, what circumstances are so different as to justify depriving those agencies of that discretion in counties containing a city of the first class? We see none.

On the other hand if it is proper to allow the voters of an area to determine the propriety of the transfer in some counties, what are the circumstances that make it improper for the voters to have this option in all other counties? We see none.

Neither the size nor population of the area nor the fact that the problem may occur more frequently in the more populous areas has any natural relationship to the object of the legislation. House Bill 158 violates both Sections 59 and 60 of the Constitution. It creates a procedure which is limited without any reasonable basis to counties containing cities of the first class when it could have been made universally applicable throughout the state. It is thus local in nature. It also exempts counties containing a city of the first class from the operation of a general law without any sufficient or reasonable basis for such exemption and thereby violates Section 60 of the Constitution.

The statute is subject to the further vice that a county containing a city of the first class may also contain a city of some other class with an independent school district. Thus an independent school district in a fourth-class city in Jefferson County would be required to use an entirely different procedure to annex adjacent areas to its independent school district from the procedure used by independent school districts in fourth-class cities in all the remaining counties in the state. No justification for this disparity has been suggested.

The appellee relies upon Sims v. Board of Education of Jefferson County, Ky., 290 S.W.2d 491 (1956) and Board of Education of Kenton County v. Mescher, 310 Ky. 453, 220 S.W.2d 1016 (1949). These cases are not controlling. In Mescher the statute prescribed procedures for annexation by school districts in cities of the fifth and sixth classes. Before the case was decided, the Act was amended and became applicable to cities of all classes.

In Sims, a tax for school purposes limited in application to schools in counties containing a city of the first class was sustained upon the basis that the need for additional revenue was substantially greater in such counties. In that case size and growth of population peculiar to counties containing first-class cities were determined to be so relevant to revenue requirements as to justify legislation for that particular classification, whereas no such relevancy exists between the size of the county and the procedure for annexation in school districts. The relevant considerations are the same in small and large communities. That this is true is indicated to some extent by the fact that the Superintendent of Public Instruction is required by KRS 160.045(2) to give consideration to precisely the same factors in approving transfers in every county that the courts are required to consider in determining equitable terms for transfer in counties containing a city of the first class pursuant to the provisions of House Bill 158.

Since the judgment must be reversed upon the basis of the improper classification, we do not deem it necessary to review the question of whether the Act unconstitutionally imposes nonjudicial functions upon the judiciary.

The judgment is reversed with directions that a new judgment be entered consistent with this opinion.

MILLIKEN, C. J., and OSBORNE, REED and EDWARD P. HILL, Jr., JJ., concur. Individual dissenting opinions by PAL-MORE and STEINFELD, JJ. NEIKIRK, J., joins in the dissents.

1 . Although Section 183 of the Kentucky Constitution provides that the General Assembly shall, by appropriate legislation, provide for an efficient system of common schools, we have held that such legislation is not appropriate if it contravenes another constitutional provision of equal dignity. Board of Education of Louisville v. Board of Education of Jefferson County, Ky., 458 S.W.2d 6 (1970).