
    Floyd Smith, et al. v. Bill Sells, et al.*
    
    
      (Nashville.
    
    December Term, 1927.)
    Opinion filed March 3, 1928.
    1. PUBLIC OFFICES. ABOLITION.
    While the Legislature may adopt a new system of government for a municipal corporation or for such institutions or agencies of the State as are not protected by the Constitution, and may abolish the old plan and the offices created for the administration of the old plan, the change in form of government must he real and not colorable, for the purpose of putting one set of men out of office and another set in office. (Post, p. 540.)
    Citing: House v. Creveling, 147 Tenn. (20 Thomp.), 589; Private Acts 1927, chapter ^396.
    2. PUBLIC OFFICES. ABOLITION.
    An Act of the Legislature which provides that a board of public school directors shall perform all the duties and exercise all of the powers of the former County Board of Education “not in conflict with the provisions of this Act,” and where the number ^of members of said Board is reduced from seven to five, three of the members of the original Board being named in the Act to serve on the new Board, and where the compensation of the members is reduced, and which contains other minor changes, it is obvious that the system ^identical under each of the two Acts and cannot have the effect of changing the nature or identity of the offices of the members, said Act is therefore unconstitutional and void. (Post, p. 542.)
    Private Acts 1927, chapter 396.
    *Headnote 1. Constitutional Law, 12 C. J., section 898; Schools and School Districts, 35 Cyc., p. 859.
    FROM PICKETT.
    
      ¡Appeal from the Chancery Court of Pickett County.— ELon. W. R. Oppioeb, Chancellor,
    Turner & Cullom, A. P. Opexcer and E. D. White, for complainant.
    E. C. Knight and O. K. Holladay, for defendants.
   Mr. Justice Swiggart

delivered the opinion of the Court.

Private Acts of 1927, chapter 396, abolished the County Board of Education in Pickett County and substituted therefor a County Board of Public School Directors, consisting of five members. The Act named five citizens as constituting the first Board of Public School Directors, including three of the seven members of the Board of Education serving at the date the Act was enacted.

The bill in this cause was filed by the four members of the County Board of Education, deprived of their office by the new statute, charging, among other things, that the act is unconstitutional because only a colorable effort to legislate them out of office.

The test by which this contention must be measured, has been developed in several opinions of this court, reviewed in House v. Creveling, 147 Tenn., 589, where the rule is stated as follows:

“. . . it is now settled law in Tennessee that the Legislature may adopt a new system of government for a municipal corporation or for such institutions or agencies of the State as are not protected by the Constitution, and to this end the Legislature may abolish the old plan and the offices created for the administration of the old plan in whole or in part. The -rights of officers thus affected must give way to what the Legislature conceives to he the public interest. This, of course, assumes the change in form of government to he real, and not color-able, for the purpose of putting one set of men out of office and another set-in office.”

By section 8 of the Act of 1927, it is expressly provided that the Board of Public School Directors shall 'perform all the duties and exercise all the powers of the former County Board of 'Education, ‘ ‘not in conflict with the provisions of this act.”

The caption of the act describes it as creating the County Board of Public School Directors, defining the qualifications, powers and duties of the members, and providing for their election and compensation.

We have carefully examined and' compared the detailed provisions of this act, and of those provisions of the General Education Act, chapter 115 • of the Public Acts of 1925, which pertain to the County Board of Education; and we are not able to find any substantial difference in the form of government of the county schools in the one act from that prescribed by the other. The only points of difference which we can find are that the membership of the County Board is reduced from seven to five; the county superintendent is required to act as secretary without additional compensation, while, under the general law, he may be allowed compensation by the board for his services as secretary. The general law authorizes the county court to pay a per diem up to $4 to the members of the County Board, while the Act of 1927 fixes their compensation at $2.50' per day, limited to twelve days per year, with the limit extended to forty days in the case of the chairman. Under each statute the chairman and county superintendent constitute the executive committee, with the real control of the schools, subject to the action of the entire board, and charg'ed with the duty of making a written.report of their actions, to be entered on the minutes of the board. Under the general act the executive committee is required to meet as often as necessary, while, under the Act of 1927, the committee is required to meet twice a month. Under each act the board is required to elect a chairman from the members. Under the general act the chairman is required to countersign all warrants, while the superintendent is required to keep a record of receipts and disbursements, and to be present at the periodical settlements of the trustee with the county. Under the Act of 1927, all these duties are imposed upon the chairman.

Under each act the members of the board are required to take an oath of office, but a bond for the faithful discharge of duties is required only under the Act of 1927.

It seems obvious to us that the system of government and control of the county schools is identical under each of the two statutes. The differences are confined to mere matters of detail, and cannot have the effect of changing the nature or identity of the office of members of the County Board of Education.

If the intention of the Legislature had been to accomplish a reform by reducing the number of the members of the County Board of Education from seven to five, this could have been most easily accomplished by abolishing the office of two members of the existing board, leaving the other five members in office. There was no necessity for the removal of four members of the County Board to accomplish this reform in the mode or system of school control, and no reason is suggested' in the briefs of counsel for the removal of four members in order to accomplish a reduction of only two members.

The changes made being only colorable, we think the purpose of the act is manifestly the removal .or legislation out of office of four members of the County Board of Education of a single county; and this being true, the act falls within the condemnation of the authorities cited, hereinabove.

We agree with the Chancellor in his conclusion that the Act of 1&27 is unconstitutional and void, for the reasons stated, and his decree will be affirmed.  