
    CASE 12. — ACTION BY THE FISCAL COURT OF LOGAN COUNTY AND OTHERS AGAINST THE COUNTY BOARD OF EDUCATION ON SUBMITTED QUESTIONS.—
    April 22, 1910.
    Fiscal Court of Logan County, &c. v. Board of Education, Logan County.
    Appeal from Logan Circuit Court;.
    W. P. Sandidge, Circuit Judge.
    Judgment for defendant, plaintiffs appeal and defendant files a cross appeal.
    Affirmed, on the appeal and reversed on the cross appeal.
    1. Schools and School Districts — School Funds — Capitation Tax. —Since the imposition of a poll or capitation tax for school purposes is authorized by the Constitution, it is the absolute ■duty of the fiscal court to levy a capitation tax within the ■statutory limit at the request of the board of education.
    2. Schools and School Districts — Regulation—Taxes.—Under ■Ky. St. section 4426a, conferring on a county board of educan tion control of the educational interests and' needs of the county, it is the duty of the board before asking the fiscal court for a levy for educational purposes to estimate the amount which in the judgment of the board may be needed for that purpose, which request, if within the prescribed limit, must be complied with by the fiscal court.
    2. Schools and School Districts — School Funds — Expenditure— Purpose. — Under Ky. St. section 4426a, authorizing the county board of education to purchase, lease, or rent school sites, to build, repair and rent schoolhouses, purchase school furniture or other apparatus necessary to the conduct of the ■schools, the board may expend the school funds in its discretion for all the educational needs of the county, and so long as the discretion is not abused or is reasonably exercised, it will not be interfered with by the courts.
    
      4. Schools and School Districts — School Funds — Expenditure— Statutes. — Ky. St. section 4426a, authorizing county boards of education to disburse school funds, is not retroactive, and does not authorize such boards" to use any funds coining into its hands to pay debts created by school districts prior to the enactment of such section, such debts being payable only as provided by the law in force when the indebtedness was created.
    5. Schools and School Districts — School Funds — Disbursement—• Taxpayer’s Action. — A citizen and taxpayer of a county may maintain proceedings to restrain the county board of education from illegally disbursing or misapplying school funds.
    E. J. F'ELTS for appellants.
    S. R. CREWDSON for appellee.
   Opinion of the Court by

Judge Carroll.

Tliis is an agreed case for the.purpose of settling some questions about which there'was a difference of opinion between the fiscal court and the board of education. The questions are (1) Is ihe fiscal court required by law to levy a sufficient tax to raise .the amount of funds asked for by the board of education, provided such amount does not exceed 20 cents on the $100 on the assessed valuation of taxable property subject to taxation for school purposes, and $1 poll or capitation.tax; or, has the fiscal court a discretion as to the amount of tax it will levy for school purposes? (2) Can, or not, the fiscal court be required to levy an ad valorem tax and a capitation tax in any amount for the purpose of paying a debt incurred for any purpose by any school district prior to the time the act of 1908 went into effect, for the purpose of paying the balance due on any schoolhouse building legally contracted for prior to the going into effect of the act of 1908, but not fully paid for at said time; is such a debt one against the board of education and to which the funds received by it from the tax levied by the fiscal court may be subjected, or is such debt one that must-be paid by the individual district incurring the same prior to the time the act of 1908 went into effect? (3) Is the fiscal court required by law to make a levy upon the estimate made to it by the board of education, and' to levy the amount asked for by it upon said estimate, irrespective of the character of items submitted by the board of education; or has the fiscal court the right to inquire into such estimate and ascertain whether or not the items thereof constitute a legal demand against the board?

So much of the act of 1908 (Laws 1908, c 56), now section 4426a of the Kentucky Statutes as it is necessary to consider in disposing of the questions submitted for our consideration, reads as follows:

“(9) It shall be the further duty of the county board of education to estimate and lay before the' fiscal court of the county the educational needs of the county in accordance with such estimate, and said county shall levy tax for school purposes not to ex-eéed twenty cents on each hundred dollars of assessed valuation of property in the county, and a capitation tax not exceeding one dollar, and the sheriff shall then collect this, tax as other state and county taxes are collected. * * "When the tax so levied shall have been collected by the sheriff of the county, he shall turn, over to the county superintendent, who shall act as treasurer of the county board of education, the amount of money so levied and collected, and the county board shall expend the money so received in the building; improvement and equipment of school houses, for the purchase and -condemnation of necessary real estate, for the -payment of teachers, purchasing necessary supplies and the extension of the school term in the various sub-districts throughout the county, as in their judgment as a county board the needs of the individual schools for white and colered pupils demand. * * *

“(11) The county board of education shall have the power to purchase, lease, or rent school sites, to build, to repair and to rent school houses, purchase maps, globes, charts, school furniture, or other apparatus necessary to the efficient conduct of the schools of the county, and said county board is hereby vested with the title, care and custody, of all school houses, sites, or other property belonging to the districts of their several counties, and when in the opinion of the board, any site for school house has become unnecessary, they may sell and convey the same in the name of the county board of education. * * *

“(13) The county superintendent shall keep an exact account of all receipts and disbursements and shall report the same in detail to the county board as often as they may require and annually to the fiscal court of the county on the date specified by that court for' receiving said report. The books and records of the county board shall be open for the inspection of any citizen of the county.”

Under these statutes we held in Mclntire v. Powell (not yet officially reported) 125 S. W. 1087, that the imposition of a poll or capitation tax for school purposes was authorized by the Constitution. It was-therefore the right and duty of the fiscal court to levy a capitation tax as requested by the board of education, and the amount of this tax now in the hands of the sheriff should be paid over to the county superintendent for the use and benefit of the board of education. The board of education has control of the educational interests and needs of the county, and it is the duty of the board before asking the fiscal court to make a levy for educational purposes to estimate the amount that in the judgment of the board may be needed for this purpose. And when the Jboard of education requests the fiscal court to levy a property and capitation tax within the statutory limit, it is the duty of the fiscal court to levy the property and capitation tax requested by the board, if it is within the statutory limit. The fiscal court has no discretion to exercise on this subject. It must lay.the levy demanded. In submitting to the fiscal court an estimate of the amount that in the judgment of the board is needed it is not necessary that the board should mention the specific purposes, or any of the purposes, to which it intends to apply the funds. The expenditure of the funds within the statutory limits is entirely within the discretion of the board of education. It can use them as provided in the statute “in the building, improvement and equipment of school houses, for the purchase and condemnation of necessary real estate, for the payment of teachers, purchasing necessary supplies and the extension of the school terms in the various sub-districts throughout the county, as in their judgment as a county board the needs of the individual schools for white and colored pupils demand.” And this carries with it the power given in the statute “to purchase, lease, or rent school sites, to build, to repair and to rent school houses, purchase maps, globes, charts, school furniture, or other apparatus necessary to the efficient conduct of the schools of the county.” In short, the objects mentioned in the statute for which the board of education may expend the funds under its control comprehends all the educational needs of the county. The statute was intended to, and does, invest the board of education with a large discretion in the expenditure of the funds levied for the benefit of the schools, and so long as this discretion is not abused, or is reasonably exercised, the courts will not interfere with it. But, as said in Board of Education of Pike County v. Andrews Co., 122 S. W. 207, the provisions of the act of 1908 “were not intended in any wise to be retroactive, but they look to and deal with the present and the future good of the various schools throughout the country,” and the board of education has no power to use any of the funds that may come into its hands in the payment of debts created by school districts prior to the enactment of the law of 1908. School districts that had incurred indebtedness before the act of 1908 became effective must satisfy such indebtedness in the manner provided by law at the time the indebtedness was created.

The county superintendent is required by the statute to keep an exact account of all receipts and disbursements of the board, and to report the same in detail to the board as often as they may require, and annually to the fiscal court, and the books and records are at all times open for the inspection of any citizen of the county. And so'any citizen of the county can at any time inform himself of the amount of money in the hands of the board and the disposition the board is making of the funds placed under its control, and if the board should at any time attempt to divert or misapply the funds, any citizen and taxpayer of the county has the right to institute such proceedings as may be necessary to restrain such illegal disbursement or misapplication. Whether or not the members of the board would be personally liable for an illegal or unauthorized disposition of the funds we do not determine.

As tlie judgment of the lower court, except in one particular, conforms to the views we have expressed, it is affirmed on the appeal and'reversed on the cross-appeal, with directions to enter a judgment in conformity with this opinion. Each party will pay onelialf the costs in this court.  