Hodgkin v. Kentucky Chamber of Commerce

246 S.W.2d 1014, 1952 Ky. LEXIS 657
CourtCourt of Appeals of Kentucky
DecidedFebruary 29, 1952
StatusPublished
Cited by4 cases

This text of 246 S.W.2d 1014 (Hodgkin v. Kentucky Chamber of Commerce) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hodgkin v. Kentucky Chamber of Commerce, 246 S.W.2d 1014, 1952 Ky. LEXIS 657 (Ky. Ct. App. 1952).

Opinion

SIMS, Justice.

This appeal presents but one question, the narrow one of whether under § 186 of our Constitution the common school fund of the State shall be distributed on a per capita basis of children actually in school; or on the per capita basis of children of school age residing in the district, regardless of whether they are actually in school. The chancellor decided the distribution should be on the basis of the number of children of school age actually attending school.

Section 186 of the Constitution directs how the school fund shall be distributed. The part pertinent to this litigation, as amended in 1949, reads: “* * * each school district in the Commonwealth shall receive on a census pupil basis its proportionate part of at least seventy-five per cent of any fund accruing to the school fund.” It is contended by appellant the words “census pupil” mean all children of school-age in the district; while appel-lees contend these words mean only the children of school age actually in. attendance in school.

In arriving at the proper meaning of “census pupil”, it may be of assistance to review our several Constitutions and the amendments thereto, as well as statutes, [1015]*1015which relate to the distribution of the common school fund. Our third Constitution adopted in 1850 was the first which dealt with the distribution of this fund. It merely said: “The general assembly -shall make provision * * * that each county shall be entitled to its proportion * * * of said fund.” Article 11, Constitution 1850. The next Legislature provided that the auditor should apportion each year the common school fund “among the several counties of the state, according to the number of free white children in each between the ages of six and eighteen years, as shown by the returns of the assessors in his office.” Rev.Stats. 1852, p. 599. Mr. Robert J. Breckinridge, Superintendent of Public Instruction from 1847-1851, vigorously opposed this action by the Legislature on the ground that the distribution should be made according to the number of children in school rather than the number •of children of school age in the county. See Report of the Superintendent of Public Instruction for year 1851. Ky. School Rep. 1847-1852.

In construing Article 11 of the 1850 Constitution in Auditor v. Holland, 77 Ky. 147, on page 149, it was said the school fund should be distributed among the several counties in the proportion that the “school-ages” children in the county bear to all the school-children in the State. The framers of the 1890 Constitution .were of the impression that under the 1850 Constitution the school fund was distributable on the basis of the number of children of school age in the county. We say this because in the debates of the Constitutional Convention of 1890, 4 Const. Debates, p. 4586, we find that Mr. Bronston when referring to the basis of the distribution of -the school fund under the 1850 Constitution said it was “upon the basis of the number of school children within the school age in each county”.

Section 186 of the Constitution of 1890 provides, “Each county in the Commonwealth shall be entitled to its proportion ■of the school fund on its census of pupil children for each school year”. This seems .to be the first reference made to “census pupil” in the distribution of the school fund. An Act of 1920, Acts of that year, Chapter 4, page 5, submitted an amendment to § 186 which permitted the General Assembly to prescribe the manner of the distribution of this fund, “provided, however, that not more than ten per cent of said public school fund shall be distributed other than upon the per capita basis.” The people rejected this amendment. In 1940 the General Assembly submitted practically the same amendment to § 186 as that defeated at the polls in 1921, Acts of 1940, Chapter 64, page 294, and this time the voters approved the amendment. Then in 1949 by amendment this 10% was raised to 25%, but the 90% .left in the fund by the 1941 amendment, as well as the 75% left in it by the 1949 amendment, was made distributable “on a census pupil basis”. Acts of 1948, Chapter 163, page 368. Could it be the 1920 amendment was defeated because it made the distribution upon a pro rata basis without stating what the basis for the pro rata was?

In 1916 the Legislature made a general revision of the school law, Acts of that year, Chapter 24, page 162. Section 14 of that Act, page 168, subsequently became KS 4375 in the 1930 edition of the Statutes, and provided for the distribution on the basis of the “pro rata share to which each pupil-child will be entitled, according to the whole number of such children residing in each county, as shown by the returns of the county superintendent.” When the school law was again rewritten by the 1934 Legislature, Acts of that year, Chapter 65, page 197, section 4, page 210, provided the distribution should be made to each school district “according to the number of children listed in its census enumeration.” This section became KS 4370-4 in the 1936 edition of our Statutes, and is now KRS 157.040 which latter section says the distribution shall be made “according to the number of children listed in the census enumeration as shown by the annual report of the attendance officer.”

Thus, for fifty years before the writing and adoption of the present Constitution and for fifty years thereafter, every reference to the distribution of the school fund provided it should be made according [1016]*1016to the number of children in the school district. At no time has the distribution been based on the number of pupils actually in attendance in school. No attempt was made to change the accepted meaning in amending the section in 1940 and again in 1949.

The General Assembly of 1930 enacted a bill appropriating $1,250,000 annually out of the State treasury to be expended as the State Board of Education should provide, Acts of 1930, Chapter 36. In Talbott v. Kentucky State Board of Education, 244 Ky. 826, 52 S.W.2d 727, it was held this Act ran afoul § 186 of our Constitution which requires the school fund to be distributed on a pro rata or per capita basis. True, the opinion did not say on what the per capita or pro rata was based, but § 186 which the court was then construing read at that time, “Each county in the Commonwealth shall be entitled to its proportion of the school fund on its census of pupil children for each school year”. Therefore, the per capita or pro rata referred to in the opinion of necessity was based on the county census of pupil children. The opinion further states the Act of 1930 was the first challenge to this construction placed on § 186 by the Legislature, lawyers and laymen. The Talbott opinion was followed in Board of Education of Calloway County v. Talbott, 261 Ky. 66, 82 S.W.2d 1059, at page 1062.

Appellees call attention to the rule, “All words and phrases shall be construed according to the common and approved usage of language * * * ”, KRS 446.080(4); also, to the familiar rule in statutory construction that every word is to be given meaning and effect. Varney v. Justice, 86 Ky. 596, 600, 6 S.W. 457, 459.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Manzoor Memon v. Haroon Shaikh
Court of Appeals of Texas, 2013
Williams v. Wilson
972 S.W.2d 260 (Kentucky Supreme Court, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
246 S.W.2d 1014, 1952 Ky. LEXIS 657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hodgkin-v-kentucky-chamber-of-commerce-kyctapp-1952.