Hart, J. (after stating the facts).
The general rule is that a statute will always be sustained by the courts if there be any reasonable doubt of its unconstitutionality. The Legislature of 1919 passed an act providing for county boards of education and making it their duty to elect a county superintendent of schools. Crawford & Moses’ Dig., §§ 8873 et seq. We are -of the opinion that the constitutionality of the statute is settled by the principles decided in Mitchell v. Directors School District No. 15, 153 Ark. 50, and Acree v. Patterson, 153 Ark. 188.
In the first-mentioned case the court held that the act of the Legislature creating .county boards of education and conferring on them power to form new school districts or alter the boundary lines of existing ones, thus substituting the county board of education for the county court, was a valid and constitutional act, and did not violate the provisions of art. 7, § 28, of the Constitution, which, provides, among other things, that county courts shall have exclusive original jurisdiction over the. local concerns of their respective counties. In that case it was said that our earlier decisions on the subject show that the court did not consider the jurisdiction to form school districts or to change the boundaries was conferred upon county courts under the provisions of the Constitution referred to, but that it had always been considered a purely statutory power.
This holding was reaffirmed in Acree v. Patterson, supra, where the power of the county board of education to create a new school district was upheld. If the Legislature could create a county board of education, with power to create school districts, change the boundaries thereof, and to have general direction and supervision of the public schools of the county, there would seem to be no good reason why it could not provide for the election of a county superintendent by the county board of education, if it saw fit to do so.
The additional argument in the present case is made that the act violates § 9 of art. 19 of the Constitution, which provides that the General Assembly shall have no power to create a permanent State office not expressly provided for by the Constitution. It clearly appears from the language of the act that he is either a county officer or an employee of the county. The county superintendent is elected by the county board of education and is subject to removal by the said board. His general duties are to execute the orders of the county board of education and perform such other duties as may be prescribed by law. Thus it will be seen that be is not a State officer within the meaning of the provisions of the Constitution just referred to, and it is not necessary to decide whether he is a county officer or merely an agent employed by the county to superintend the common schools.
Again, it is insisted that the act in question is in violation of the provision of our Constitution relative to the creation and maintenance of common schools. See art. 14 of the Constitution of 1874.
Sec. 1 provides that the State shall maintain free schools for all persons between the ages of six and twenty-one years.
Sec. 2 provides that no money or property belonging to the public school fund or to this State for the benefit of schools and universities shall ever be used for any other than for the respective purposes to which it belongs.
•Sec. 3 provides for the levy of taxes to support the common schools of the State.
Sec. 4 provides that the supervision of public schools and the execution of the laws regulating the same shall be vested in and confided to such officers as may be provided for by the G-eneral Assembly.
In the construction of the act as a whole this court has held that the Legislature may designate the agencies through which the common school fund may be distributed and ascertain the basis on which such distribution may be made. It has held, however, that no specific appropriation by the Legislature is necessary for each year, because, the Constitution having* set aside the school fund for school purposes only, there is what is usually termed a constitutional appropriation. Dickinson v. Edmondson, 120 Ark. 80. In that case the court further held that the Constitution, having provided for the establishment of free schools for the education of persons between certain prescribed ages, the common school fund could not be expended for the instruction of persons without those ages.
The court further held that, while there was no ex- • •press provision in the Constitution for uniformity, the distribution of the common school fund must be uniform, and that therefore the school board could not be authorized by the Legislature to select particular high schools to be aided by the common school fund.
' ' There is nothing in the act under consideration which violates the article of - the Constitution providing for the establishment and maintenance of common schools, nor is there anything which conflicts with the principles of law laid down in Dickinson v. Edmondson, 120 Ark. 80. The Constitution does prohibit the Legislature from applying the common school fund to, any other branch of State expenditures except that immediately and directly connected with the establishment and maintenance of a common school system.
The Legislature deemed it expedient to create county boards of education and to provide for county superintendents for public schools. It also provided for the payment of these officers out of the common school fund. This did not constitute a diversion of the school fund to other than school uses. The Constitution provides that the supervision of such schools and the execution of the laws regulating the same shall be vested in such officers as may be provided for by the Legislature.
The offices in question were created by the Legislature solely for the benefit of the common schools. The county superintendent is the chief officer of the schools in the county, and the statute makes it liis duty to execute the orders of the county board and to perform such other duties as may be prescribed by law. Thus it will be seen that his official duties are directly connected with the supervision and regulation of the common schools, and the expenditure for his salary is directly and immediately connected with the common school system.
The Court of Appeals of Kentucky has held that a constitutional provision prohibiting the Legislature from appropriating school funds for any purpose than in aid of the public schools does not prohibit an appropriation from the school funds to meet the expenses of the department of education. Superintendent of Public Instruction v. Auditor of Public Accounts (Ky.), 30 S. W. 404.
The Supreme Court of Nevada has held that, the Superintendent of Public Instruction being immediately connected with the public schools, an act appropriating money from the general school fund for the payment of Ms salary is not contrary to a provision of the Constitution prohibiting the appropriation of the school fund for other than school purposes. State v. Westerfield (Nev.) 49 Pac. 554.
The chancellor was of the opinion that schools in incorporated cities and towns were exempted from the provisions of the act. ■
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Hart, J. (after stating the facts).
The general rule is that a statute will always be sustained by the courts if there be any reasonable doubt of its unconstitutionality. The Legislature of 1919 passed an act providing for county boards of education and making it their duty to elect a county superintendent of schools. Crawford & Moses’ Dig., §§ 8873 et seq. We are -of the opinion that the constitutionality of the statute is settled by the principles decided in Mitchell v. Directors School District No. 15, 153 Ark. 50, and Acree v. Patterson, 153 Ark. 188.
In the first-mentioned case the court held that the act of the Legislature creating .county boards of education and conferring on them power to form new school districts or alter the boundary lines of existing ones, thus substituting the county board of education for the county court, was a valid and constitutional act, and did not violate the provisions of art. 7, § 28, of the Constitution, which, provides, among other things, that county courts shall have exclusive original jurisdiction over the. local concerns of their respective counties. In that case it was said that our earlier decisions on the subject show that the court did not consider the jurisdiction to form school districts or to change the boundaries was conferred upon county courts under the provisions of the Constitution referred to, but that it had always been considered a purely statutory power.
This holding was reaffirmed in Acree v. Patterson, supra, where the power of the county board of education to create a new school district was upheld. If the Legislature could create a county board of education, with power to create school districts, change the boundaries thereof, and to have general direction and supervision of the public schools of the county, there would seem to be no good reason why it could not provide for the election of a county superintendent by the county board of education, if it saw fit to do so.
The additional argument in the present case is made that the act violates § 9 of art. 19 of the Constitution, which provides that the General Assembly shall have no power to create a permanent State office not expressly provided for by the Constitution. It clearly appears from the language of the act that he is either a county officer or an employee of the county. The county superintendent is elected by the county board of education and is subject to removal by the said board. His general duties are to execute the orders of the county board of education and perform such other duties as may be prescribed by law. Thus it will be seen that be is not a State officer within the meaning of the provisions of the Constitution just referred to, and it is not necessary to decide whether he is a county officer or merely an agent employed by the county to superintend the common schools.
Again, it is insisted that the act in question is in violation of the provision of our Constitution relative to the creation and maintenance of common schools. See art. 14 of the Constitution of 1874.
Sec. 1 provides that the State shall maintain free schools for all persons between the ages of six and twenty-one years.
Sec. 2 provides that no money or property belonging to the public school fund or to this State for the benefit of schools and universities shall ever be used for any other than for the respective purposes to which it belongs.
•Sec. 3 provides for the levy of taxes to support the common schools of the State.
Sec. 4 provides that the supervision of public schools and the execution of the laws regulating the same shall be vested in and confided to such officers as may be provided for by the G-eneral Assembly.
In the construction of the act as a whole this court has held that the Legislature may designate the agencies through which the common school fund may be distributed and ascertain the basis on which such distribution may be made. It has held, however, that no specific appropriation by the Legislature is necessary for each year, because, the Constitution having* set aside the school fund for school purposes only, there is what is usually termed a constitutional appropriation. Dickinson v. Edmondson, 120 Ark. 80. In that case the court further held that the Constitution, having provided for the establishment of free schools for the education of persons between certain prescribed ages, the common school fund could not be expended for the instruction of persons without those ages.
The court further held that, while there was no ex- • •press provision in the Constitution for uniformity, the distribution of the common school fund must be uniform, and that therefore the school board could not be authorized by the Legislature to select particular high schools to be aided by the common school fund.
' ' There is nothing in the act under consideration which violates the article of - the Constitution providing for the establishment and maintenance of common schools, nor is there anything which conflicts with the principles of law laid down in Dickinson v. Edmondson, 120 Ark. 80. The Constitution does prohibit the Legislature from applying the common school fund to, any other branch of State expenditures except that immediately and directly connected with the establishment and maintenance of a common school system.
The Legislature deemed it expedient to create county boards of education and to provide for county superintendents for public schools. It also provided for the payment of these officers out of the common school fund. This did not constitute a diversion of the school fund to other than school uses. The Constitution provides that the supervision of such schools and the execution of the laws regulating the same shall be vested in such officers as may be provided for by the Legislature.
The offices in question were created by the Legislature solely for the benefit of the common schools. The county superintendent is the chief officer of the schools in the county, and the statute makes it liis duty to execute the orders of the county board and to perform such other duties as may be prescribed by law. Thus it will be seen that his official duties are directly connected with the supervision and regulation of the common schools, and the expenditure for his salary is directly and immediately connected with the common school system.
The Court of Appeals of Kentucky has held that a constitutional provision prohibiting the Legislature from appropriating school funds for any purpose than in aid of the public schools does not prohibit an appropriation from the school funds to meet the expenses of the department of education. Superintendent of Public Instruction v. Auditor of Public Accounts (Ky.), 30 S. W. 404.
The Supreme Court of Nevada has held that, the Superintendent of Public Instruction being immediately connected with the public schools, an act appropriating money from the general school fund for the payment of Ms salary is not contrary to a provision of the Constitution prohibiting the appropriation of the school fund for other than school purposes. State v. Westerfield (Nev.) 49 Pac. 554.
The chancellor was of the opinion that schools in incorporated cities and towns were exempted from the provisions of the act. ■
Sec. 8873 of Crawford & Moses’ Digest, which provides for the county board of education, reads as follows: “Prom and after the third Saturday in May, 1920, the public schools of each of the several counties of the State, except those schools in incorporated cities and towns that have superintendents devoting their time to school supervision, shall be under the general direction and supervision of a county board of education, consisting of five members. The county board of education of each county shall be elected by the qualified electors of each county at the annual school election. All members of the county board of education of any county shall be persons of good moral character, with at least a fair elementary education, of good standing in their respective communities, and known for their honesty, business ability, public spirit, and interest in the good of public education. ’ ’
The language of the statute is plain,' and there is an express declaration by the Legislature excepting schools in cities and incorporated towns from the supervision of the county board of education. It does not follow, however, that the act is void because a part of the salary of the county superintendent is paid for out of the school funds which would go to the common schools in cities and incorporated towns. "While the school fund cannot be diverted from the use for school purposes, as provided in the Constitution, the manner of the use is subject to legislative regulation, and the Legislature may direct and control the use. If the original beneficiary enjoys it anyway, there is neither diversion nor confiscation which the Constitution prohibits. Pearson v. State, 56 Ark. 148.
In that case the court upheld an act of the Legislature releasing the county treasurer from liability for school funds stolen by burglars without fault on his part. The court said that if the Legislature uses the funds or property as the beneficiary ought to have done, the law deems it as devoted to the use of the beneficiary; and this, though the particular application be made to satisfy a demand not enforceable in law or equity, but sanctioned only by established principles of right and fair-dealing.
Under the act in question, while the county superintendent does not have the particular direction and supervision of schools in cities and incorporated towns, he does in a sense have general supervision over them by establishing uniform grades, and in various other ways which tend to promote the common school system.
Therefore we are of the opinion that the chancery court erred in enjoining the county board of education from applying the proportion of the school taxes of appellees towards the payment of the salary of the county superintendent.
For that error the decree must be reversed and the cause remanded, with directions to the chancery court to enter a decree in accordance with this opinion.