we must assume that there is no article in our organic law which the people regarded as more important to their welfare and prosperity. This conviction is greatly strengthened when we find that the only criminal offense defined and made indictable by the instrument is one created especially to enforce obedience to its specific commands in respect to the establishment of four-months schools. In commenting upon this, Mr. Justice Avery well says: "It is difficult to understand why this wide departure from the usual course was made, unless we interpret it as emphasizing the intent of the framers of the constitution that the officers held subject to this unusual liability should have power coextensive with their accountability." (Board v. Commissioners, 111 N. C. 585.)

"Schools and the means of education shall forever be encouraged," says the constitution. Why? Because they foster religion and morality, which, with knowledge, are necessary to good government. The people expressed their willingness to incur such expense because of the great good resulting therefrom. It is hardly probable they intended by a previous enactment in the same instrument to render it impossible to carry out purposes expressed in such earnest and unmistakable language. Our people regarded the subject of education as of the highest and most essential importance, and there is no provision in our constitution which is clearer, more direct or commanding in its terms than Article IX. As said by Judge Merrimon, "Its framers, whatever else may be said of their work, seem to have been especially anxious to establish and secure beyond peradventure a system of free popular education." (Barksdale's case, 93 N. Č. 483.) This sentiment has grown greatly in the hearts and minds of our people since that section of the constitution was adopted. So great has been its growth that they have in recent years adopted an educational qualification as a prerequisite to exercising the electoral franchise. (Constitution, Art. VI, sec. 4.) This places an additional obligation upon us to provide full educational facilities for the youth of the State, who otherwise may grow up in ignorance and be disqualified to take their just part in the administration of our government.

The construction placed upon the constitution by the Barksdale decision has been found to be an especial handicap upon the country schools. In the cities and towns, generally, special taxes are levied by a vote of the people, graded schools established, and the requirements of the constitution more than complied with. Very many country schools can not continue open for four months unless the tax prescribed by the act is levied. The country school is the nursery of the larger part of the bone and sinew of this land. It carries a greater responsibility than the city schools in proportion to its advantages, for, as is well said by a recent writer, "It is charged, not only with its country problems, but with the training of many persons who swell the population of cities. The country school is within the sphere of a very definite series of life occupations." Thus it is seen that Article V vitally affects all the leading purposes of the constitution. It therefore becomes more imperative than ever that, if it reasonably can be done, we should give the instrument that construction which will effectuate and carry out its wise and beneficent provisions. We think we do this when we hold that the limitation contained in Article V was not intended to restrain and trammel the general assembly in providing the means whereby the boards of commissioners of the different counties are enabled to perform the duties enjoined by the constitution and give to the people public schools in each school district for at least four months in each year. Instead of prescribing the rate of tax to be levied for the purpose of a four-months school, the general assembly properly and wisely left the amount to be levied to be determined by the county authorities of each county. In some counties it may not be necessary to levy any tax, while in others some tax, differing in amount, will have to be levied and collected in order to carry out the directions of the law. In levying the tax the boards of commissioners must observe the equation between property and poll fixed in the constitution. In estimating the tax necessary beyond the limit of 663 cents on property and $2 on the poll to give a four-months term, no longer period may be considered. When the fourmonths' requirement is fulfilled the limit of taxation fixed in Article V necessarily takes effect, and anything beyond that would be void. The taxes levied and collected in pursuance of the act constitute a special fund supplemental to the general school fund, and must be devoted exclusively to procuring four-months terms of the public schools in those counties or districts only where, for lack of funds, they are kept open for a shorter period.

After careful consideration of the matter, we are of the opinion that the judgment of the superior court dissolving the restraining order should be affirmed.

HIGHER EDUCATION: APPROPRIATIONS.

VIII. Kentucky.

[James, Auditor, v. State University. Same r. Board of Regents for Eastern Kentucky State Normal School. Same v. Board of Regents for Western Kentucky State Normal School (Court of Appeals of Kentucky, Dec. 18, 1908), 114 S. W., 767.]

1. STATES-FUNDS-APPROPRIATIONS.

The state university and the state normal schools are among the educational institutions for which, under the proviso of constitution, section 184, the legislature may make appropriations without submitting the question to the voters.

2. SCHOOLS AND SCHOOL DISTRICTS-FUNDS

APPROPRIATIONS.

Neither the change of the name of the "Agricultural and Mechanical College of Kentucky" to "State University, Lexington, Kentucky," by act March 15, 1908 (Acts, 1908, p. 22), nor transfer by such act of its normal work proper to the state normal schools, the collegiate department of pedagogy being retained, destroyed its identity as a public corporation and state institution as respects the matter of appropriations therefor.

3. STATES-APPROPRIATIONS-INDEBTEDNESS.

Whether an appropriation is a debt within constitution, sections 49, 50, prohibiting the legislature contracting an indebtedness in excess of $500,000 to meet casual deficits or failures in the revenues, or contracting a debt for any other purpose, except with a provision for levy and collection of a tax to meet it, depends on the character of the appropriation and the manner of its payment; and act March 16, 1908 (Acts, 1908, p. 22), appropriating $200,000 for buildings for state educational institutions, to be paid in three equal sums, in December of three successive years, and $70,000 for their current expenses of the year, and for each succeeding year, will not be held to contravene such sections; it not appearing that, when the payments are to be made, there will be such a deficit.

Appeals from circuit court, Franklin County.

Three actions, one by the state university, another by the board of regents for the Eastern Kentucky State Normal School, and the third by the board of regents for the Western Kentucky State Normal School, all against F. P. James, auditor of the State. Judgments for plaintiffs. Defendant appeals. Affirmed.

SETTLE, J.: By an act of the general assembly of the Commonwealth of Kentucky approved March 16, 1908 (Acts 1908, p. 22), there was appropriated to the appellee, the State University, Lexington, Ky., $200,000, or so much thereof as might be necessary for the erection and equipment of new buildings for its use, payment of its indebtedness, etc., and the further sum of $20,000 for "the current fiscal year and for each succeeding year;" to the appellee, Eastern Kentucky State Normal School, Richmond, Ky., $150,000, or so much thereof as might be necessary for the erection and equipment of a suitable dormitory and other buildings, and the further sum of $20,000 for "the current fiscal year and for each succeeding year;" to the Western Kentucky State Normal School, Bowling Green, Ky., $150,000 for like purposes, and the additional sum of $30,000 for "the current fiscal year and each succeeding year.' The act contains a provision to the effect that one third of each of the lump appropriations mentioned should be due and payable on December 1, 1908; one-third July 1, 1909; and one-third July 1, 1910. Each of the appellees demanded of the appellant, F. P. James, auditor of the State, that he issue his warrants upon the state treasurer for the payment of the annual appropriation due each for "the current fiscal year," and, in addition, the appellee, the state university, on September 8, 1908, made demand upon him for the sum of $2,000, that amount being due the contractor upon the architect's estimate at that time on the building of civil engineering and physics, in process of erection under the direction of the board of trustees, and in accordance with the provisions of the act of the legislature. A like demand was made at the same time upon the auditor by the appellee, Eastern Kentucky State Normal School, for the sum of $12,000, that amount being then due the contractor for work done upon the normal school buildings; but the auditor failed and refused to issue his warrants upon the treasurer in favor of the appellees, or any of them, for the sums demanded, or any part thereof. Following the refusal of the auditor to issue the warrants demanded of him, appellees instituted these several actions against him in the court below to enforce the payment of such part of the appropriations made by the act in question as they are now entitled to, respectively, and prayed that writs of mandamus be granted to compel the issual by him of warrants upon the state treasurer therefor. The appellant, auditor, filed an answer to each petition interposing several grounds of defense: (1) That the act making the appropriations is repugnant to section 184 of the state constitution. (2) That the appellee state university in adopting its present corporate name in lieu of its former one "Agricultural and Mechanical College," and in being separated from its

normal school department by the transfer of that department to the eastern and western state normal schools, as provided by the act of March 16, 1908, lost its identity as a public corporation and state institution, and became a private corporation, which deprived it of the right to longer demand or receive financial assistance from the State. (3) That neither the Eastern nor Western Kentucky State Normal School is mentioned in the constitution, nor fairly included in the provisions of section 184 of that instrument. (4) That the appropriations made appellees by the act of March 16, 1908, when added to the necessary running expenses of the state government and other appropriations made by the general assembly during its 1908 session, would exceed the annual revenues of the State by more than $500,000, and thus create a debt against the State in contravention of sections 49 and 50 of the constitution. The three causes were consolidated and appellees filed demurrers to the answers. The demurrers were sustained by the circuit court, to which the appellant excepted. He thereupon declined to plead further, following which the lower court entered judgment declaring each of the appellees entitled to the relief sought, and directing a mandamus to issue in each of the cases against the appellant, auditor, to compel the issual by him of his warrants on the treasurer of the State for the amounts respectively demanded by appellees. Of that judgment appellant complains; hence this appeal.

We will consider the several matters of defense relied on by appellant in the order stated. With respect to the first contention made in the answers, we may say that the question of whether the appropriations in controversy are or not obnoxious to the provisions of section 184 of the constitution depends upon whether appellees are among the educational institutions for which, under the proviso of that section, the legislature is authorized to make appropriations without submitting the question to the voters of the State. Section 184 of the constitution reads as follows: "The bond of the Commonwealth issued in favor of the board of education for the sum of $1,327,000 shall constitute one bond of the Commonwealth in favor of the board of education, and this bond and the $73,500 of the stock in the Bank of Kentucky, held by the board of education, and its proceeds, shall be held inviolate for the purpose of sustaining the system of common schools. The interest and dividends of said fund, together with any sum which may be produced by taxation or otherwise for the purposes of common school education, shall be appropriated to the common schools, and to no other purpose. No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters, and the majority of the votes cast at said election shall be in favor of such taxation: Provided, the tax now imposed for educational purposes, and for the endowment and maintenance of the Agricultural and Mechanical College, shall remain until changed by law." We understand the question under consideration to have been definitely settled by this court as to all the institutions named. In the case of the Agricultural and Mechanical College v. Hager, Auditor, 121 Ky. 1, 87 S. W. 1125, the court had under consideration the constitutionality of an act of the legislature (Acts 1904, p. 288, c. 120) which made an annual appropriation of $15,000 to the college in question. It was contended in that case, as now insisted in the instant cases, that the appropriation was forbidden by section 184 of the constitution; but the court held that this was not true, and that as it was apparent that the college, a state institution maintained by the State by taxation and through appropriations of public funds, was in existence at the time of the adoption of the present constitution, that the constitutional convention intended the proviso in section 184 to apply to it. Therefore the act of 1904 was valid; the legislature having authority under section 184 of the constitution, and by virtue of the proviso therein, to make the appropriation in question without submitting the matter to a vote of the people. This conclusion of the court, as demonstrated by the opinion, was not only authorized by the language of section 184 of the constitution, but was supported by the opinions of various members of the constitutional convention expressed in debate over that section, and likewise by the contemporaneous practical construction given it by all the departments of the state government, including the legislature; the latter having, from time to time, covering a period of many years, made appropriations, in addition to the tax of half a cent on each $100 in force when the present constitution was adopted, for the maintenance of the appellee institution now known as the state university. The opinion enumerated various educational institutions of the State, in addition to the appellee state university, which were at the time of the adoption of the constitution owned by the State and being maintained by it through appropriations of public funds raised in whole or in part by taxation, and declared that these institutions were also included by the proviso of section 184, which should be understood to read as if they had been named therein. The several institutions thus named, the opinion holds, the State was left free to continue by necessary appropriations, without submitting them to a vote of the people, till such time as the right to do so, in the language of the proviso

in section 184, shall be "changed by law." All that was said in the opinion, supra, in upholding the constitutionality of the appropriation of $15,000 made by the act of 1904 to the Agricultural and Mechanical College, we may, with equal propriety, apply to the appropriations made to each of the appellees in these cases by the act of March 16, 1908. Neither the change in the name of the appellee state university or the separation from it of its normal school department destroyed its identity as a public corporation and state institution, as claimed by appellant. The act changing the name of the "Agricultural and Mechanical College of Kentucky," to "State University, Lexington, Kentucky," expressly retains and preserves to the institution under the new name all the rights and privileges it had and exercised under its old name; and, in order that no doubt might occur or question arise as to the status of the institution after the change of name, the act provides that it shall be maintained by the Commonwealth; that no previous act making provision for it under the old name shall be affected by the change of name; that all moneys to which the institution will be entitled from the federal and state governments shall be paid to it in its present name, "State University," and that all educational or other work formerly done by the institution under the old name except what appertains to the normal school department shall be performed by it under the new one. Its work, plans, and corporate status continue as under the old name. The institution is still officered by trustees appointed by the governor of the State by and with the consent of the senate; the governor and superintendent of public instruction being ex-officio members and the former chairman of the board. In brief, the university is the creature of the State, a mere instrumentality, employed by it "to promote the liberal and practical education of the industrial classes in the several pursuits and professions in life." An apt suggestion contained in the brief of appellees' counsel will illustrate our meaning. Would a devise made by John Smith to his daughter, Mary Smith, become void if she should by marriage change her name to Mary Jones? Certainly not. While the devise was made to Mary Smith, manifestly it was not the name of the daughter that supplied the motive for the devise, but it was the person, the fact that she was his daughter, that he had on that account an affection for her, and that she was entitled to his bounty, that moved the testator to provide for her. In becoming Mary Jones she enters upon a new and perhaps happier sphere of life, but the change of name or manner of living will not affect the devise. So, while the state institution of learning at Lexington, now called "State University," was the "Agricultural and Mechanical College" mentioned in the state constitution and in the statutes of the State previously, and even since enacted by the legislature, it is nevertheless the same institution, possessing the same corporate existence, powers, and privileges, and engaged in the same beneficent work, and what the State has done for it was not because of its name, but because of its work. The new name neither adds to or detracts from the worth or mission of this temple of the arts and sciences founded by the Commonwealth, but is more readily pronounced than the old one, and more in keeping with the relation it sustains to the cause of education and a people whose pride and sympathy are enlisted in its success. A glance at the history of the institution will suffice to show that it was designed to be conducted as and to do the work of a university. That there is a distinction between the college and the university no one can doubt. It seems to be the mission of the college "to impart to the student known facts. It deals with a body of knowledge more or less complete, which has come to the present generation as a legacy. The university, on the other hand, while covering and including the college work in its undergraduate courses, seeks to add to this known body of knowledge by original investigation and research and new discoveries in the field's of science, and thus to widen and enlarge the boundaries of human knowledge."

A university may include several colleges or departments of education, and it was for the purpose of converting the Agricultural and Mechanical College into such a university in name and thereby give it a title that would comport with its past and future work, that the legislature, by the act of March 16, 1908, changed its name to "State University, Lexington, Kentucky." Section 4 of the act provides: "That the requirements of the law of Congress approved July 2, 1862, for the instruction in these branches of learning, relating to agriculture and the mechanical arts and to military tactics, shall be carried out fully, and that these branches shall continue to be integral and indispensable courses of instruction in the state university; and that in addition to the other colleges of said university, one of the colleges shall be denominated the agricultural College, and another the College of Mechanical Arts of the State University." By the same act other departments in addition to those mentioned above, such as a department of education with collegiate rank leading to the usual degree in pedagogy, a department of law, one of medicine, and perhaps others, were added to the state university, but the addition of these departments merely enlarged the work of the institution without destroying its identity as a state institution, relieving it of state control, or affecting its right to receive financial aid from the state government. The separation

from the appellee state university of its normal school department did not affect its legal status, but merely served to transfer the normal work proper to the regular institutions created by the legislature for the purpose of conducting it, viz, the appellees Eastern and Western State Normal Schools, which are auxiliaries of the state university and better able to conduct that department of educational work than the state university. But this arrangement still left to the state university the collegiate department of pedagogy for still higher training in the art of teaching than the normal school can afford. It is patent, therefore, that the state university has yet a department of education, which, though connected with the normal work, was not transferred to the state normal school. The arrangement by which the normal school work proper is confined to the two state normal schools is apparently a most excellent one. The state normal schools constitute a part of the common school system of the State, and the object of the legislature in establishing them was to more fully carry into effect the provisions of section 183 of the state constitution by giving to the teachers of the Commonwealth such training in the common school branches, science and art of teaching, and in such other branches deemed necessary by the normal executive council as will enable them to make the schools throughout the State efficient. While the State has for quite a number of years collected by taxation an annual school fund sufficient to have had good schools for the education of her youth, in point of fact much of it has practically been wasted, and the schools have proved deficient. Perhaps one of the principal causes for this state of things has been the lack of a sufficient number of qualified and competent teachers. The two state normal schools should supply this longfelt want, and, if sufficiently equipped will do so, by educating and turning out each year young men and women specially trained and skilled in the art of teaching. A certain number may be sent every year to these institutions from each county of the State free of tuition, and it was conceded in argument that hundreds from all parts of the State are already taking advantage of the opportunities for special training afforded by these schools, in order that they may qualify themselves for the very honorable and highly useful work of teaching. Whether, as suggested in argument, the appropriations in question were inspired by an awakening upon the part of the people of Kentucky and its legislature upon the subject of education, we need not inquire; but it is manifest that with the facilities afforded by the common schools, high schools, and state university for the education of the youth of the State and those afforded by the normal schools for the training of teachers, neither inspiration nor prophetic vision is required to enable those concerned for the welfare of the Commonwealth to see that the time is near at hand when much of the illiteracy that is now a curse to the State will give place to greater general intelligence, and in consequence, greater respect for law and order. While it is true, as claimed by appellant, that neither of the state normal schools is mentioned in the constitution of the State, we do not concede, as he further contends, that they are not included by the provisions of section 184 of that instrument. On the contrary, they are, as we have already indicated, so included.

In the case of Agricultural and Mechanical College v. Hager, Auditor, supra, the opinion in enumerating the educational institutions of the State embraced in the proviso of section 184, named the state normal school for colored persons as one of them. In commenting on that fact in the later case of Marsee v. Hager, Auditor, 101 S. W., 882, 31 Ky. Law Rep., 79, which involved the construction of an act establishing a system of normal schools in the State, creating a board of regents to control them, and appropriating $50,000 for the benefit of the schools to be established, the court said: "It was not intended by the enumeration of the various institutions set forth therein to present an exhaustive catalogue, but only to name certain institutions as illustrating the kind of educational interests which the convention intended to place within the benefits of the proviso. It was not intended to say there were no other institutions, although they were not then in the mind of the court, for whose benefit the legislature might appropriate money from the treasury. In mentioning the state normal school for colored persons as one of the institutions for which appropriations from the treasury are permissible, it was intended to convey the idea that normal schools as a department of public education, whether for white or colored persons, are among the educational purposes introduced in the proviso of section 184. It would be a serious construction, indeed, that would establish the principle that the legislature might appropriate money for the benefit of a normal school for colored teachers but not for white. At the time the present constitution was framed, the normal school for white persons was carried on as a part of the Agricultural and Mechanical College, where it still, in part, is conducted. What the act in question does in practical effect is to separate that school into three parts, leaving one as a department of the Agricultural and Mechanical College at Lexington and establishing two others at different points in the State, one at Richmond and the other at Bowling Green, Ky. There is nothing in section 184, or any other part of the constitution, to which our attention has been directed that militates against the power of the legislature to separate the normal school for white persons into