Case 50 — Action to Haws an Order Creating a School District Set Aside and to Have a Tax Levy Discharged.

Nov. 14.

#### Howard & Others v. Forrester & Others.

APPEAL FROM HARLAN CIRCUIT COURT.

Judgment for Defendants and Plaintiffs Appeal

Reversed.

Schools and School Districts — New Districts — Formation—Notice — County Superintendent — Powers.

Held: 1. Kentucky Statutes, section 4427, declares that no change in the boundaries of any school district shall be made until ten days’ notice in writing shall have been given to the trustees of the other districts to be affected thereby. Held, that where a county superintendent of schools attempted to establish a new school district out of territory taken from other districts without giving such required notice, his acts did not constitute the creation of a new district, and hence a school tax sought to be collected therein was unenforcible.

2.Kentucky Statutes, section 4418, authorizing the county superintendent of schools to decide all questions of difference touching the administrative duties of the officers and teachers of common schools in his county, does not confer on such superintendent jurisdiction to determine the validity of proceedings for the establishment of a new school district out of territory taken from other districts.

G. A. EVERSOLE and TINSLEY & FAULKNER, Attorneys for appellant.

POINTS AND AUTHORITIES.

1. A county superintendent of schools is not a judicial officer. Const., secs. 27 and 28.

2. The taxing power when delegated must be substantially in accordance with the grant. Am. & Eng. Ency. of Law, vol. 25, page 202.

3. The courts may he appealed to to enjoin the collection of an illegal tax. Gates v. Barrett, 79 Ky., 295; Allison v. L. & N. R. R. Co., 9 Bush, 241; L. & N. R. R. Co. v. Warren County, 5 Bush, 243.

4. A county superintendent can only lay off, change, or abolish districts between the first of January and the first of April in each year, and the word “year,” in section 4403, means calen*337dar year. Ky. Stats., secs. 4403 and 452. An order creating a new district in tbe month, of December was without authority and void.

6. No change in the boundary of any district shall be made unless ten days’ notice be first given to the trustees of other districts to be effected thereby. Ky. Stats., 4427.*

6. The right of appeal to the State Superintendent, as provided in section 4418 of the statutes, does not apply to a question of the making, altering or abolishing districts. Ky. Stats., 4418.

J G. FORRESTER, Attorney fob appellee.

1. The new district was created on a petition filed by the parties interested, which petition was .signed by the plaintiffs.

2. When the county superintendent acts on a question of this character he acts in a judicial capacity, and if he errs the remedy is by appeal to the Superintendent of Public Instruction. He can not be sued and be subjected to the payment of costs.

3. The manner of laying off districts is largely directory, not mandatory.

4. The order recites that the trustees of districts Nos. 28 and 29 gave their consent to the change; then what use was there for a notice? And said districts are not complaining. Ky Stats., 4403-4418.

Opinion of the cotjet by

JUDGE PATNTER

Reversing.

On demurrer the allegation is taken as true that the county superintendent oí 'schools did not givé to the trustees of school districts Nos. 28 and 29 notice that he would ■establish a new district out of territory taken from each of the districts named. Before a county superintendent of schools is authorized to change the boundary of any district, he must give ten days’ notice in writing to the trustees of the districts to be affected by *tbe*proposed change, for section 4427, Ky. St., reads as follows; “. . . No change in the boundary of any district shall be made to take effect during the current or the following school-year, unless made previous to taking the census for such school-year. Nor shall the boundary of any district be *338changed unless ten days’ notice in writing shall be first given to the trustees of other districts to be affected thereby.” If there was mot a compliance, or a substantial compliance, with the provision of the statute quoted, the action of the county superintendent Yas invalid; hence the tax sought to be collected from the appellants is not enforceable. Section 4418, Kentucky Statutes, reads as follows: “The county superintendent shall decide all questions of difference or doubt touching the administrative duties of the officers and teachers of common schools in his county; but appeals from his acts and decisions may be had, on petition of any interested person, to the superintendent of public instruction. The c-iounty superintendents shall conform to such reasonable rules and requirements as the superintendent of public instruction shall, from time to time, prescribe and announce to them.” The question here involved is not one touching the administrative duties of officers and teachers of common schools. By this section the legislature did not intend to confer upon a county superintendent of schools the jurisdiction to adjudge the rights of parties in a controversy like this one. The judgment is reversed for proceedings' consistent with this opinion.