[369]*369Opinion op the court by
Judge Hobson
— Affirming.
Under an act entitled “an act for the government and regulation of the common schools of this state,” approved March 24, 1908 (see Acts 1908, p. 133, c. 56; Ky. St. Sec. 4426a), the board of education of Christian county, by written statement asked the fiscal court of that county to make a levy on all property subject to taxation under the act, sufficient to raise the sum of $10,000, exclusive of the cost of collection for school purposes for the school year beginning July 1, 19091 The fiscal court, being advised by the county attorney that the act was unconstitutional, refused to make the levy, and thereupon the board of education brought this suit in the Christian Circuit Court to obtain a writ of mandamus against the members of the fiscal court compelling them to make the levy. The defendants entered their appearance, and filed a demurrer to the petition. The court overruled the demurrer. The defendants declined to plead further, and the court granted the writ as prayed. The defendants appeal.
While the act makes radical change in our present school laws, it was manifestly not intended to be the whole law on the subject. The repealing clause is in these words: “All laws and parts of laws in conflict with this act are hereby repealed.” Under this provision only so much of the old law as is in conflict with the new law is repealed. There are many subjects embraced in the old law which are not touched by the new; and it is manifest from the act that it was only intended to change the existing law in the particulars to which it relates. Section 183 of the [370]*370Constitution requires the General Assembly to provide by appropriate legislation an efficient system of common schools throughout the state. What system will be most efficient is for the judgment of the General Assembly. The Legislature was of opinion that the old system was not as efficient as it should be, and that some change was necessary. It also evidently concluded that the proposed change would make the schools more efficient. In a matter like this, resting within the discretion of the General Assembly, the court will not substitute its judgment for the judgment of the Assembly, and it will not interfere with the action of the Legislature, unless a palpable effort to evade the mandate of the Constitution should appear. The common school system heretofore has consisted of a school in each district controlled by three trustees elected in that district. The main purpose of the act in question is to substitute a county board, having control of all the schools in the county, for the district boards of trustees heretofore existing. Graded schools are excepted out of the operation of the act. The act’only applies to the territory lying outside of any graded school district. The white children and the colored children within any city or graded school district remain under the old law, and are in no wise affected by this act, as it only applies to that part of the county outside of these districts. No injustice is therefore done either the white or colored children in graded school districts by the act; for these districts are governed by the old law, as though this act had not been passed. In providing for a school board to have charge of all the schools in the county outside of the graded school districts, whether white or colored, the Legislature did not introduce a new idea into our laws. We have [371]*371the same system now in the cities of the commonwealth, and the experience of the working of these boards in the cities no donbt prompted the Legislature to extend the same system to the country districts. While the Constitution requires the General Assembly to maintain separate schools for white and colored children, it does not require a separate system of education for both. We have always had one State Superintendent, who has charge of all the schools of the state; one State Board of Education, whose jurisdiction extends alike over white and colored people; one county superintendent, who has charge of all the schools in the county. To provide for a county board of education is in line with the laws that have always been in force. If the law does not work well in its present shape, the General Assembly may remedy the evil, but this is a matter addressed to its discretion. The act is not unconstitutional because the Legislature provided for only one county board of education.
All of the provisions of the old law requiring separate schools for white and colored children, and forbidding that white children shall attend colored schools, or that colored children shall attend white schools, are left in force by the act. In fact section 17 of the act recognizes that there must be separate districts for white and colored children. It is.insisted that under section 2 of the act a school district may not contain less than 40 white children nor more than 100, and that as the districts are to be established on this basis, great injustice may be done the colored children. To prevent this, section 17 was inserted in the act, giving the county board power to consolidate any two or more districts with reference to the needs of either white or colored children. If [372]*372there are not enough colored children in any district, it may be consolidated with some other colored district, so that injustice shall not be done. The question of laying off the counties into districts so as to do no injustice to either race is not without difficulty, as there are in some of the counties of the state a large number of colored people, and in a large part of the state few or no colored people. And so the Legislature left the matter of the school districts to bo worked out by the county boards in each county according to their sound discretion, upon the idea that these boards being upon the ground could solve the question better than the Legislature.
The act provides that within two years after its passage there shall be established, by the county board of education of each county, one or more county high schools, provided there is not already existing in the county a high school, and that, in this event, the high school may be considered as meeting the purposes of the act, without the establishment by the board of a high school. It is insisted that the act is void because it does not require a separate high school for whites and blacks, and that, if a high school, is established for whites, there will be a discrimination against the blacks. But it will be observed that the act requires the board to establish one or more high schools. The act also provides that the money derived from the taxes shall be spent by the board according to its best judgment'to promote the cause of education in the county. When the board of education shall discriminate against either race, then the race discriminated against may raise that question. The act does not contemplate that there shall.be any discrimination. The act is passed under the provision of the Constitution requiring the Legislature [373]*373to provide an efficient system of common schools, and to maintain separate schools for white and colored children. The duty imposed by the Constitution upon the Legislature is the same as to both white and colored children, both as to separate schools and as to the efficiency of the schools. The county board holds office under the Constitution, and in discharging their duties they should administer the funds as provided by the Constitution, according to their best judgment. There is nothing in the act authorizing any discrimination.
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[369]*369Opinion op the court by
Judge Hobson
— Affirming.
Under an act entitled “an act for the government and regulation of the common schools of this state,” approved March 24, 1908 (see Acts 1908, p. 133, c. 56; Ky. St. Sec. 4426a), the board of education of Christian county, by written statement asked the fiscal court of that county to make a levy on all property subject to taxation under the act, sufficient to raise the sum of $10,000, exclusive of the cost of collection for school purposes for the school year beginning July 1, 19091 The fiscal court, being advised by the county attorney that the act was unconstitutional, refused to make the levy, and thereupon the board of education brought this suit in the Christian Circuit Court to obtain a writ of mandamus against the members of the fiscal court compelling them to make the levy. The defendants entered their appearance, and filed a demurrer to the petition. The court overruled the demurrer. The defendants declined to plead further, and the court granted the writ as prayed. The defendants appeal.
While the act makes radical change in our present school laws, it was manifestly not intended to be the whole law on the subject. The repealing clause is in these words: “All laws and parts of laws in conflict with this act are hereby repealed.” Under this provision only so much of the old law as is in conflict with the new law is repealed. There are many subjects embraced in the old law which are not touched by the new; and it is manifest from the act that it was only intended to change the existing law in the particulars to which it relates. Section 183 of the [370]*370Constitution requires the General Assembly to provide by appropriate legislation an efficient system of common schools throughout the state. What system will be most efficient is for the judgment of the General Assembly. The Legislature was of opinion that the old system was not as efficient as it should be, and that some change was necessary. It also evidently concluded that the proposed change would make the schools more efficient. In a matter like this, resting within the discretion of the General Assembly, the court will not substitute its judgment for the judgment of the Assembly, and it will not interfere with the action of the Legislature, unless a palpable effort to evade the mandate of the Constitution should appear. The common school system heretofore has consisted of a school in each district controlled by three trustees elected in that district. The main purpose of the act in question is to substitute a county board, having control of all the schools in the county, for the district boards of trustees heretofore existing. Graded schools are excepted out of the operation of the act. The act’only applies to the territory lying outside of any graded school district. The white children and the colored children within any city or graded school district remain under the old law, and are in no wise affected by this act, as it only applies to that part of the county outside of these districts. No injustice is therefore done either the white or colored children in graded school districts by the act; for these districts are governed by the old law, as though this act had not been passed. In providing for a school board to have charge of all the schools in the county outside of the graded school districts, whether white or colored, the Legislature did not introduce a new idea into our laws. We have [371]*371the same system now in the cities of the commonwealth, and the experience of the working of these boards in the cities no donbt prompted the Legislature to extend the same system to the country districts. While the Constitution requires the General Assembly to maintain separate schools for white and colored children, it does not require a separate system of education for both. We have always had one State Superintendent, who has charge of all the schools of the state; one State Board of Education, whose jurisdiction extends alike over white and colored people; one county superintendent, who has charge of all the schools in the county. To provide for a county board of education is in line with the laws that have always been in force. If the law does not work well in its present shape, the General Assembly may remedy the evil, but this is a matter addressed to its discretion. The act is not unconstitutional because the Legislature provided for only one county board of education.
All of the provisions of the old law requiring separate schools for white and colored children, and forbidding that white children shall attend colored schools, or that colored children shall attend white schools, are left in force by the act. In fact section 17 of the act recognizes that there must be separate districts for white and colored children. It is.insisted that under section 2 of the act a school district may not contain less than 40 white children nor more than 100, and that as the districts are to be established on this basis, great injustice may be done the colored children. To prevent this, section 17 was inserted in the act, giving the county board power to consolidate any two or more districts with reference to the needs of either white or colored children. If [372]*372there are not enough colored children in any district, it may be consolidated with some other colored district, so that injustice shall not be done. The question of laying off the counties into districts so as to do no injustice to either race is not without difficulty, as there are in some of the counties of the state a large number of colored people, and in a large part of the state few or no colored people. And so the Legislature left the matter of the school districts to bo worked out by the county boards in each county according to their sound discretion, upon the idea that these boards being upon the ground could solve the question better than the Legislature.
The act provides that within two years after its passage there shall be established, by the county board of education of each county, one or more county high schools, provided there is not already existing in the county a high school, and that, in this event, the high school may be considered as meeting the purposes of the act, without the establishment by the board of a high school. It is insisted that the act is void because it does not require a separate high school for whites and blacks, and that, if a high school, is established for whites, there will be a discrimination against the blacks. But it will be observed that the act requires the board to establish one or more high schools. The act also provides that the money derived from the taxes shall be spent by the board according to its best judgment'to promote the cause of education in the county. When the board of education shall discriminate against either race, then the race discriminated against may raise that question. The act does not contemplate that there shall.be any discrimination. The act is passed under the provision of the Constitution requiring the Legislature [373]*373to provide an efficient system of common schools, and to maintain separate schools for white and colored children. The duty imposed by the Constitution upon the Legislature is the same as to both white and colored children, both as to separate schools and as to the efficiency of the schools. The county board holds office under the Constitution, and in discharging their duties they should administer the funds as provided by the Constitution, according to their best judgment. There is nothing in the act authorizing any discrimination.
The act is not unconstitutional in that it requires the fiscal court to make a levy sufficient to raise the sum found necessary by the board of education. In obeying the constitutional mandate to provide an efficient system of common schools the Legislature must necessarily have the discretion of choosing its own agencies, and conferring upon them the powers deemed by it necessary to accomplish the ends aimed at. The whole subject of common school education is confided to the judgment of the General Assembly by the Constitution. It may create such agencies as it deems proper to carry out the provisions of the Constitution. The General Assembly comes fresh from the people. After a short session of 60 days it returns to the people, and if any measures conceived by it to provide an efficient system of common schools, throughout the state shall not prove satisfactory to the people, they have ample remedy in their own hands to correct the evil. While Kentucky has spent large sums for education, the fact remains that our percentage of illiteracy is far above the average in the states about us; and it must be conceded by all that there was urgent need of some action by the [374]*374General Assembly to provide a more efficient system of common schools than we have had. On the whole case, we find nothing in the act that is unconstitutional.
Judgment affirmed.