The Montgomery advertiser., 1908-09-24
city treasurer to D. di.Our..d to the
ro,,ou. Astor,.y ee.ersi.

FOLLOWS AUpEMey UEnEH8hs
 Following an opinion of Attorney Gen erai Garber on this point, the Depart ment of Education has disregarded the section of the Municipal Code referred to for the reason that 1t Is alleged to be unconstitutional. 1t Is claimed by the Attorney General to be In conflict with Section 25e of the Constitution, the section. which 1t is admitted by all Is the only definite expression of that instrument on the subject. The part of this section touching on the question follows:
 The public school fund shall be apportioned to the several counties in proportion to the number of school children of school age therein. and shall be so apportioned to the schools in the districts or townships in the county as to provide, as nearly as practicable, school terms of equal du- ration In such school districts or townships"
 Those sections of the Code on which Superintendent Gunnels has based his action In apportioning to the councils are 1761 and 1765. The one prescribes the method by which the Department of the State shall apportion the gen. eral fund to the various counties. us- ing the last census of school children as the basis, after making certain deductions from the money as the standing appropriations to the Normal sch ools of the State. It is urged that this is simply carrying out one part of Section 256 and that Section 1765 provides the machinery contemplated by another part of the constitutional provision.
 Section 17s5 is unequivoeal in the language used to give power to the county boards to apportion the funds awarded to the county among the several school districts thereof. "so as to provide, as nearly as practicable, school terms of equal duration in such districts"
 That this section of the Code is de- signed to carry out the purpose of Section ass of the Consultation is evi- dent, 1t is said, from the use of the identical language in both the con- stltution and the statute.
 The Department of Education insists on apportioning absolutely to the counties without regard to municipal tiles or other districts, doing this on the census squarely. while It leaves to the county boards the authority to apportion among the districts. not spective districts. but to secure terms of equal duration or as nearly as gos- sible.
 Repeal of Section I7e5.
 Mayor-eleet Gunter Is said to be of the opinion that as the Municipal Code section was passed subsequent to the passage of Section 1765 the latter is in effect repealed. It Is understood that 1t Is his idea to prove this con- tention in whatever hearing he may secure in the courts. It may resolve itself into the all-important question of whether the Municipal Code section Is in full force or whether 1t is un- constitutional and contrary to Section 1765 of the Code of Alabama.
 If the fight should result In 6 victory for the cities. it would mean a con- siderable loss to county superintend- ents of education in the matter of commissions for disbursing the school funds of the State. They now enjoy four per cent. commission on the funds disbursed to all districts of the counties, including the incorporated towns. there being a limit of $1,s00 on the total amount of such commission for q year. If the Department of Education were to pay the city's money direct to the city authorities it would thus deprive the county su- perintendents of e neat slice.