Appendix — Layne v. Floyd County Board of Education

17

APPENDIX A

Ss

FLOYD CIRCUIT COURT

CR 6953

‘Orders Civil Causes

September Term, 11th Day —

18th Day of. September, 1970

Jaxe Layne, Er a es - Plaintiffs,

against |

Boarp or Epvucation or Froyp County, Ken-

tucky, Er At., - - - - - « Defendants

OPINION, . FINDINGS OF FACT AND

CONCLUSIONS OF LAW

The issues re maining to be tried in this case are:

1. The plaintiff's contention that the judgment in the

ease-of Orris Gearheart, et al. against the Board of Edu-

cation of Floyd County, Kentucky, rendered in 1939, is still

2 valid and cnllevecaiile judgment, and

2. Defendants’ plea of res judicata relying on a judg-

‘ment entered in the Floyd Cireuit Court on May 29, 1968,

being the case of. Raymond Griffith against the Floyd -

County Board of Education.

After hearing the evidence presented by the plaintiffs

and defendants and argument of counsel, the Court is of

the opinion that the two remaining issues in the case are

primarily questions of law, the first issue being in the

nature of a request for a declaration of rights,

18

In considering the pleadings and exhibits relating to the

case of Raymond Griffith against Floyd County Board of

Education, it is apparent that the plaintiff in that suit made

no pretense of suing as a representative of a class, in this

instance the residents and voters of the Martin School Dis-

trict. For this reason. primarily, the Court is of the opin-

jon that the defendants’ plea of res judicata is not. well

taken and the judgment in the Griffith case, entered on the

29th day of May, 1968, therefore, is not a bar to the cause

of action sét out by plaintiffs in this case, who meet the *

requirements of maintaining a class action.

The pertinent language of the judgment rendered in

the Gearheart case entered in 1939, is as follows: .

“It is ordered, therefore, that the defendants, Board

of Education of Floyd County, Kentucky, and the in-

dividual members thereof, and Town Hall, Superin-

tendent of Schools of Floyd County and their succes-

sors, and each of them, are hereby directed to maintain

the twelve-grade school now located in the Town of

Martin and within said Martin Consolidated School’

District, and to take any and all appropriate action

necessary and incidental thereto, including the hiring

of teachers, paying teachers’ salaries, prescribing full

and complete courses in the twelve grades and defray-

ing all expenses necessary and incidental thereto; that

said defendants and their suecessors in office and each -

of them, be and they’are hereby perpetually enjoined

from abandoning, discontinuing or suspending the

teaching bf any of the twelve grades in said school. now

located in \the Town of Martin, and within the Martin

Consolidated School District, so long as there is a suffi-

cient number of pupil children residing within said dis-

trict to meet the legal requirements for maintaining a

twelve grade school, and from requiring the pupil chil-

dren in said district, or any of them, in all or any of

19

‘said twelve grades, to attend any school located outside

of said District, all to the end that said twelve grade

school now located in said Martin Consolidated School

District shall continue to be maintained and operated as.

a twelve grade school without being disturbed.” |

It-is the opinion of the Court that the Linguage of this

judgment with the conditions imposed therein is not arbi-

trary and capricious and are im all respects reasonable.

' - Some evidence was taken and exhibits filed relating to

the conditions laid down in the 1939 judgment. The Court

is of the opinion that any determination at this time relating

to these requirements and conditions, is premature. If at

some time in the future, which is highly probable, the Floyd

County Board of Education orders the closing of the Martin

School, then and in that event it will be necessary to take

proof to determine the number of school children residing

within the district in order to satisfy the conditions. set out

in the 1939 judgment relied upon by the plaintiffs.

s/ James B. Stephenson

Special Judge

JUDGMENT -_ cm

~ The remaining issues in this case having been submitted .

for final, judgment and the Court having considered the

‘record and arguments of counsel, it is Ordered and Ad-

judged that the judgment in the case of Orris Gearheart,

et al. against the Board of Education of Floyd County is a

valid judgment and the terms thereof are in full force

and effect. ; |

The provisions in the judgment applicable here are:

“Tt is ordered, therefore, that the defendants, Board

of Education of Floyd County, Kentucky, and the in-

dividual members. thereof, and Town Hall, Superin-

tendent of Schools of Floyd County and their succes-

20 —~

sors, and each of them, are hereby directed to maintain

the twelve grade school now located in the Town of

Martin and within said Martin Consolidated School

District, and to take any and all appropriate action

necessary and incidental thereto, including the hiring»

of teachers, paying teachers’ salaries, prescribing full >

and complete courses in the twelve grades and defray-

ing all pee necessary and incidental thereto; that

said defendants and their successors — and each

of them, be and they are hereby perpetu lly enjoined

from abandoning, ‘discontinuing, or suspending the

teaching of any of the twelve grades in said School Dis-

trict, so long as there is a sufficient number of pupil

children residing within said district to meet the legal

requirements for maintaing a twelve grade school, and

from requiring the pupil children in said district, or

any of them, in all or any of said twelve grades, to

attend any school located outside of said District, all

to the end that said twelve grade school now located in

said Martin Consolidated School -District shall continue

to be maintained and ae as a twelve. grade school

_ without being distur

It is further ordered and adjudged that the “judgment

entered in the Floyd Circuit Court on May 29, 1968, in the

ease of Raymond Griffith vs. Floyd County Board of Edu-

cation is not a bar to the plaintifts’ cause of: action hereiti.

This is a final judgment and this case is stricken from

the docket subject to be redocketed should.the Floyd County

Board of Education at some future date order the closing

of the Martin School, at which time evidentiary hearing

may be had to determine compliance with the terms and

conditions of the judgment in the Gearheart case.

Each party shall pay its own costs.

> s/ James B. Stephenson |

Special Judge

21

APPENDIX B

COURT OF APPEALS OF KENTUCKY |

aie _ RENDERED: October 22, 1971 — |

~~.

a

FLoyp County Boarp or Epvcation,

Er Au. - - - - on) ta Appellants

ig | |

Jaxer Layne, Er At. - epi - - Appellees

Appeal from Floyd Circuit ‘Court

i Honorable James B. Stephenson, Special Judge

OPINION OF THE COURT BY COMMISSIONER

ig _CULLEN—REVERSING

This appeal is by the Floyd County Board of Education

. from a judgment of the Floyd Cireuit Court declaring that

the board could not close the twelve-grade school at Martin,

. Kentucky, except upon the existence of circumstances speci-

fied in a judgment of January 21, 1939, in a former action, |

as being the only circumstances which would guthorize a .

closing. 4

The ‘instant action was brought by a small group of in-

dividuals, alleging themselves to be “citizens, residents,

taxpayers, patrons, and leg@l voters of the Martin School

District,” seeking .to enjoin' the construction of a consoli-

dated school at Eastern, and to enjoin. the closing of the

22

Martin school as a part of the consolidation plan.t| The

court entered an order permitting them to maintain the

action as representatives of a class, “i.e. the citizens and

residents of Martin, Kentucky” (our emphasis).

The plaintiffs pleaded that the board of education was

precluded under the doctrine _of res judicata from closing

the Martin school, by virtue of the .1939 judgment above

mentioned, which was entered in an action brought against

. -the board of education in 1938 by a few persons who iden-

tified themselves as “citizens, residents; taxpayers and legal

white voters of Floyd County, Kentucky, and more -par-

ticularly of, and within, the Martin Consolidated School

District, and who pleaded that they brought the suif “for

and ‘on behalf of all the taxpayers: of. Floyd County, Ken-

tucky, and particularly the taxpayers and patrons of Martin

Consolidated School District.”

The 1939 judgment declared that the board of wRessiiinn

and its suecessors in.office were “perpetually enjoined from

abandoning, discontinuing, or suspending: the teaching of

any of the twelve grades in said school now located in the

Town of Martin, and within tlie Martin Consolidated School

District, so long as there-is a sufficient number of pupil

children residing within said district to meet: the legal re-

quirements for maintaining a twelve grade school, and from

requiring any pupil children in said-district, or any of them,

in all or any of said twelve. grades, to.attend any school

located ouitside of said district, -all to the end that said

twelye grade:school now located in said Martin Consoli-

dated School District shall continue to be maintained and

operated as a twelve grade school without being disturbed.” -

The circuit court in the instant action was of the opinion

that the 1939 judgment was controlling of the instant action

under the doctrine of res judicata. We do not agree.

1See tevin Vv. ‘Floyd County Board of’ Education, Ky., 449 :

S. W. 2d 587, for the disposition of the queatin of contruction of

the new school at Eastern.

23

We haliove it is important to give full consideration to

the purpose of the doctrine of res judicata and its basis in

public policy: :

oF

“The doctrine of res judicata i is a judicially created |

doctrine, which may be said te exist as an obvious rule

~ of reason, justice, fairness, ; expediency, practical neecs-

sity, and public iesiagillity. Public policy, judicial

orderliness, economy of judical time, and the interest of

litigants, as well as the peace and order of society, all

require that stability should be accorded judgments,

that controversies once decided on their merits shall re-

main in repose, that-inconsistent judicial decisions shall

not be made on the same state of facts, and that there

___be an end to litigation which, without the doctrine of

res judicata, would be endless.” 46 Am. Jur. 2d, Judg-

ments, sec. 395, pp. 559 to 561: |

“The doctrine of res judicata may be said to inhere

in legal systems as a rule of justice. Hence, the posi-

tion has been, taken that the doctrine of res judicata is

to be applied in particular situations as fairness and

justice require, and that it is not to be applied so

rigidly. as to defeat the ends of justice or so as to work

an injustice.

“The sound policy behind the doctrine is also to be

considered in applying the doctrine. In this respect,

application of the doctrine has been denied where the

policies underlying the doctrine were not applicable

to the. peculiar facts involved, and where the cireum:

stances presented a unique and nonrecurrent situation.

Moreover, there are exceptions to the doctrine of res _

judicata based upon other important reasons of policy.

In this respect it has. been declared that res judicata,

as the embodiment of a public policy, must at times be

24

weighed against competing interests, and must on occa-

' sion, ¥ield to other policies. * * *” 46 Am. Jur. 2d,°

Judgments, sec. 403, pp. 569, 570.

The doctrine of res judicata is applicable to class

actions, but-is applied to them with great caution, and where

the reason for the rule doesnot exist the rule itself W ill

net be enforced, 46 Am. Jur. 2d, Judgments, sees. 539, 540,

pp. 695, 696. - | LG

‘There appears to us at least two reasons why it would

be anomalous to apply res judicata in the instant case.

First, we are dealing with a class action involving a limited

class on one side and a public body on the other. The Floyd

County Board of Education serves and represents the entire

Floyd County school district, and owes duties to all of the

citizens. The 1939 judgment was obtained by a group of

citizens: who made no. real representation or pretence of

representing any Class other than “the taxpayers and

patrons of the Martin Consolidated School District.” .The

plaintiffs in the instant action were authorized to represent

a class consisting of “the citizens and residents of Martin,

Kentucky.” Thus, were res judicata to be applied herg, we

would. have the anomaly of a public body, representing an

entire county, being bound and precluded by a judgment °

obtained by a class which did not purport to consist of all .

of the citizens of the county; the effect of so binding the

board being to bind citizens who never. were purported to be

represented in the class action.

Secondly, it is firmly established that a school board

cannot by contract divest itself or its successor$ of the dis-:

cretionary powers granted to it by the legislature. See

Ewing v. Peak, Ky,, 266 8. W. 2d 300; Board of Education

of Louisville v. Society of, Alumni of Louisville Male High

School, Ky., 239 S. W. 2d 931. If a school board cannot

contract away its discretionary powers, would it not. be

anomalous for this court to held that the board,can lose its

25

diseretionary powers through litigation brought by persons °

purporting to represent only a small part of the citizens

of the school district? aire

We have in this case the following factors that weigh’

against application of res judicata: “The “Martin Con-

solidated School District” no longer exists as a subordinate

aie? sen iste County School District. A generation

passed since the 19389 judgment was entered. The .

policy of the law with respect to conkolidation of schools

has ¢hanged during that period.- See (Clemons v. Bottoms,

Ky., 262 S. W. 2d 85. The public policy is that school

boards have wide discretion in the management’ of school

systems, including the number and scr in of school build-

ings, and interference with administrative discretion of that

kind is not a proper judicial function: ‘See 16 Am. Jur. 2d,,

Constitutional Law, sec, 224, pp. 467 to 471. There have

heen extensive changes in facilities of) communication and

transportation since 1939. The law as embodied in. admin-

istrative regulations promulgated by bie State Board of

Edueation, in regard to consolidation of schools, has

changed. art

In addition to the foregoing factors we have here some

of the elements involved in Ward vy. Southern Bell Tele-

phone & Telegraph Co., Ky., 436 S. W. 2d 794, which led

this court to find the doctrine of estoppel by judgment in- °-

applicable i in that case.

- It is our conclusion that neither reason, justice, fairness,

expediency, practical necessity nor public tranquillity calls

for application of the doctrine of res judicata in this ease.

The judgment is reversed with directions for further

proceedings in conformity with this opinion.

All coneur,

Attorney for Appellants ;

W. W. BURCHETT, Prestonsburg, Kentueky 51653

Attorneys for Appellees:

JOE. HOBSON, Prestonsburg, Kentucky lat658

PAUL E. HAYES, Prestonsburg, Kentucky 41653

26

APPENDIX C

COURT OF APPEALS OF KENTUCKY >

Fioyp County Boarp or Epvcatiox, ) <

Cuaries Ciark, Supt. ete, et al. Appeal from a judq-

o. , ' ment of the Floyd

a Circuit Court

_Jaxe Layne, et al.

The Court being sufficiently advised, it seems the judg-

ment herein is erroneoys. |

It ix therefore considered that said judgment is reversed

with directions for further proceedings in conformity with

this opinion; which is ordered to be certified to said court.

It is further considered that the appellants recover of

the appelleees their cost herein expended.

A copy—Attest :

Frances Jones Mills, C.C.A.

By /s/ John C. Scott, D.C.

Issued January 21, 1972

27

FLOYD CIRCUIT COURT —

Onms Geanmeart, et al, - --- .- - Plaintiffs

v. : |

Boarp or Epvcation or Fuoyp County,

_ Kextvcky, - 2° © +2. ©. © Defendants

. JUDGMENT—Entered January 21, 1939

This cause, having been submitted to the court for trial

and judgment upon the whole case, and the court, upon

consideration of the pleadings, proof and exhibit<, and being

fully advised, finds, orders and adjudges, as follows :

(1) That the Martin Consolidated School District was

created and otganized about the year 1923 and by agree-

ment between the citizens and taxpayers of said district of

the one ‘part and the Floyd County Board of Education

of the other part, a twelve grade school was established in

the Town of Martin and within said Martin Consolidated

School District, which twelve grade school, ever since has -

been and is now being maintained. The citizens and tax-

payers of said district, as a part of said arrangement with

Floyd County Board of Education, purchased the «chool

site in the Town of Martin, for the sum of $1500.00, which

was conveyed to sid Floyd County Board of Education,

without charge, said parcel of land being valued by the par-

ties at the sum of $5,000.00 and in addition thereto made

substantial contributions toward construction of the first

building on said site. A special consolidated school tax was

: *

ore ee -

: 28 ;

- voted by. the legal white voters of said district about the

year 1923 of 75¢ on the $100.00 valuation of all taxable.prop-

erty in said district to supplement the revenues available

from the common school levy for the running expenses of

said school, which tax was reduced to 50¢ on $100.00 valua-

tion about the year 1928. Thereupon, by further agreement

between said Boahl of Edftcation and the citizens of said

Consolidated Sehool District, a second building was erected

on said school site in the Town of Martin and to pay part

of the cost thereof there was submitted to and voted by the

legal voters of said district a bond issue of $12,000, the pro-

ceeds from the sale of said bonds being used in the construe-

‘ tion of said new brick building for use in enlarging the —

twelve grade school already existing on said site; that the

~ original building, which was a frame structure, is now being

used for a gymnasium as well as an emergency class room

and that the County Board of Education has been required,

- during the last school year, to rent rooms im the Town of

Martin for one or more of the subjects taught in said school.

* There is now being maintained a twelve grade school in

said Martin Consolidated School District, established as

‘above stated, and the Court is of the opinion that it would

be an abuse of discretion on the part of the defendants,

Board of Education of Floyd County, and Town Hall,

Superintendent of School<, to diseontinue, abandon or <us-

pend the teaching of any of the twelve grades at said school

now located in said district, so long as there ix a sufficient

number of pupil children in sai district to meet the legal

requirements or to require the pupil children of said dis-

trict in any of the twelve grades to attend school outside of

said district.

_ It is ordered, therefore, that the defendants, Board of

Eslucation. of Floyd County, Kentucky, and the individual

members thereof, and Town Hall, Superintendent of

Schools of Floyd County and their «uceessors, and each of

29

ee

them, are hereby directed to maintain the twelve grade

school now located in the Town of Martin and within said

Martin, Consolidated School District, and to take any and

all appropriate action necessary and incidental thereto, in-

eluding the hiring of teachers, paying teachers’ salariés, pre-

seribing full and complete courses in the twelv e grade» and

defraying all expenses necessary and incidental thereto; |

that said defendants and théir successors in office and each

of them; be and they are hereby perpetually gnjoined from

abandoning, discontinuing, or suspending. the teaching of

‘any of the twelve grades in said school now located in the

Town of Martin, and within the Martin Consolidated School

District, so Jong as there is a sufficient number of pupil .

children resjding within said district to meet the legal re-

quirements of maintaining a twelve grade school, and from

from requiting the pupil children in said district, or any of

them, in all or any of said twelve grades, to attend any

school Tocated outside of said District, all to the end that

said twelve grade school now located in said Martin Con- |

solidated School District shall continue to be maintained

and operated as a twelve grade school without being dis-

turbed.

(2) The court further finds that the defendants are mn

acting within their reasonable discretion in planning te

build a school for high school pupils outside of said Martin

Consolidated Sckool District and on the site referred to in

the evidence and in purchasing the said proposed school site

for the price of $4,000.00. It is adjudged, therefore, that

the defendants, Floyd County Board of Education and the

individual members thereof, and Town Hall, Superintendent

of Sehools, and each of them, and their successors in office,

be and they are hereby perpetually enjoined and restrained

from purchasing or leasing, or accepting a deed of convey-

anee or lease or other instrument for the purpose of con-

strueting.a high school or other school building upon -the

site described inf the petition or any other site, from the

‘

Reet

.

s querer.

30

defendants Amanda Dingus, W. J. Dingus, Jr., W. D.

Dingus, Elizabetly Dingus, Jamima Qualls, Olva Dingus and

‘Tally Dingus, or either of them, or their successors or

assigns, near the Forks of Beaver Creek, and from expend-

ing any money therefor, and from accepting ‘any bid, or

awarding any contract for the construction of a high school,

or other building, upon said site.

(3) It is further adjudged that the plaintiffs, Orris

Gearheart, W. S. Frazier, J. D. Adams, Dennis Martin,

E. K. Frazier, Demra Taylor, Perry Osborne, W. G. Jarrell

and D. E. Chafin, recover of the defendaits, Board of Edu-

cation of Floyd County, Kentucky, Harold Bailey, Bill

Allen, Charles Burnette, Alex Stephens, Dr. W. D. Osborne,

Town Hall, Superintendent of Schools, Amanda’ Dingus,

W. J. Dingus, Jr., W. D. Dingtis, Elizabeth Dingus, Jamima

Qualls, Olva Dingus and Tally Dingus, their costs herein ex-

pended, for the collection of which they may have execu-

tion, and this cause is hence dismissed and stricken from

the docket.

The defendants and each of them object and except to

the foregoing judgment and pray an appeal to the Court of

Appeals, which is granted. ~

31

APPENDIX E

FLOYD CIRCUIT COURT

CR No. 6953

JakE Layne, Brit’ Weiis, Epp Taytor, F. D.

Sauispury, and Ciynarp Jones, suing as resi-.

dents, patrons, taxpayers, legal voters, and citi-

zens of the Martin School District of the Com-

monwealth of Kentucky, .and on behalf of all

other persons similarly situated,, - - Plaintiff's |

v.

Boarp or Epvucation or Froyp Covsty, Kextvcky,

Chartres Ciark, County Superintendent of

Schools of Floyd County, Kentucky, Joux M.°

Stumso, Chairman of the Board of Education |

of Floyd County, Kentucky, Dr. J. H. Autes,

Member of the Board of Education of Floyd |

County, Kentucky, Brit Biarr, Member of the

Board of Education of Floyd County, Kentucky,

Ross Cooter, Member of the Board of Eduea-

tion of Floyd County, Kentucky, O. R. Howarp,

Member of the Board of Edueation of Floyd

County, Kentucky, Boarp or Epvcatiox or

Froyvp County, Kestvecky, as a body politic,

Hewry Stumpo, Bit Weis, Zen Ovstey, Ep-

"warp CavpiLt, and Dewey Roperts, Members of

and composing the Floyd Fiseal Court - Defendants.

COMPLAINT —Filed January 10, 1969

The plaintiffs, for complaint against the defendants,

state as follows:

mye XX inte —_

32 aoe .

1. That they and each of them are citizens, residents,

taxpayers, patrons, and legal voters of the Martin School

District, Floyd County, Kentueky.

That said District was first created and or sinadinndl about

the year 1923, as the Martin Consolidated School District

and.since said time, it has. been maintained as-a part of

the public school system of Floyd County, Kentucky, pur-

‘suant to and in compliance with the statutes of the Com-

monwealth of Kentucky in such eases made and provided. |

That said Martin School District does not now exist as

a consolidated school distriet, but does exist as a part of

the school system of Floyd County, Kentucky, and is being

maintained as part of such system.

2. The City of Martin was, at the time of the creation

of said Martin Consolidated School District, a municipal

corporation of the 6th class, ereated and organized and

existing under the laws of the State of Kentucky, and is now

a eity of the 4th class.

3. The public spirited citizens, taxpayers, patrons and —

legal voters of said Martin School District, in order to

secure the benefits of better edueational facilities and ad-

vantages for the pupil children in said district, entered into

an arrangement with the Board of Education of Floyd

County, Kentucky, during the year 1925 for the construc-

’ tion, operation, and maintenance of the public school i in said -

distriet and within the corporate limits of the City of

Martin, at which both the elementary and high school grades

were to be taught; and as an inducement to the establish-

ment of such 12 grade/schoolj said citizens.and taxpayers

procured at their ow#expense and donated, without charge

to the Floyd County Board of Education, a school site of

the value of $5,000, located within the corporate limits of the

City of Martin, in the approximate center thereof and de-

scribed as follows:

“25 lots comprising the wliole of Block R in the New

Martin Addition to &e Town of Martin, Kentucky, and also

7

33

‘a strip of land at the back of said lots, extending from same

to the fence above the old county road.”

Said land was conveyed to the Floyd County Board of

Education by Townsel Combs and others, be deed dated

. July 14, 1923 appearing of record in Deed Book 65, page

423, Floyd County Court Clerk’s Office, which deed recites

that such conveyauce was made “in consideration of the sum

of Five Thousand ($5 ,000:00) Dollars, all of which sum is

to be used by the Floyd County, Kentucky, Board of Edu-

cation in the building and equipping of a new school build-

ing on the site hereby conveyed and sold as aforesaid.”

Pursuant to said arrangement, said Board of Education

proceeded to and did construet a school building and estab-

lish a twelve grade school on the above described parcel of

land, but the citizens and patroys of said school, residing

within said Consolidated District and particularly within

the Town of Martin, in addition to donating the school site,

also raised by popular subscription and advanced to said -

Board of Education for the development of a graded and

high school, contributions aggregating approximately

#2,800.00.

Thereafter, at an election duly called and held on May 31,

1924, pursuant to notice, as prescribed by statutes of the

Conionwealth of Kentucky, in such cases made and pro-

vided, the legal voters of Martin Consolidated School Dis-

trict approved and authorized the levy of an annual tax by

Floyd County Board of Education of not exceeding seventy

five cents on each $100.00 valuation of taxable property in

said District, for the purpose of supplementing the funds

available from the general school fund for the support,

upkeep ‘and maintenance of the high school and graded

school established as aforesaid upon said parcel of land in

the Town of Martin, which election was approved by order

* of said Board of Education entered at a regular meeting

held on June 13, 1924. After ordering the maximum levy

34

of 75.cents on the $100.00 valuation for the first two or three

years, said Board of Education, about. the year 1928, re-

duced the authorized levy to 50 cents on each $100.00 valua-

tion which has continued in effect from year to year down to |

the present timie and the taxes so levied have been paid each

year, by the taxpayers in said District, to the authorized

tax collector for said years, and the funds so collected have

been turned over each years to said Floyd County Board of

Edueation. . ae

The original building erected on said parcel of land in

- the Town of Martin becoming inadequate to serve all of the .

pupil children attending said school in the twelve grades °

established by defendant, Board of Education of Floyd

County, Kentucky, and the patrons and taxpayers of the

District desiring to further increase the plant, for the

pupils residing in said District, applied to the Board of

Education to call an election and submit a referendum to

the taxpayers and legal voters in said district, to pass

upon a proposed bond issue to raise additional funds for

the construction of a second building on the site located

in the Town of Martin above described. Said Board of

Education by order entered at a regular meeting held on

- April 12, 1929, which order appears at page 164 in the Rec-

ord of the County Board proceedings of ‘said date, agreed

to give the patrons of the Martin Consolidated School Dis-

trict the right to vote on such question, which was pro-

pounded in the following language :

“Are you in favor of the issuing by the Floyd County

Board of Education, for the Martin Consolidated District

No. 3, of Floyd County, in the sum of ($12,000) for the

purpose of establishing, maintaining and operating a pub-

lie school for this district, and the levying of an annual

school tax, sufficient to provide a sinking fund for the pay-

ment of the interest on the bonds and the liquidation of the

principal thereof at maturity, such annual rate to be deter-

eee ee Ge ee es

mined by the valuation of the property as assessed for

taxation during each of the years said bonds, or any of

them, are outstanding, and to cease when all of the bonds

and the interest thereon have been paid?”

The Board, in the same order appointed election offieers,

composed of Dr. W. L. Stumbo, Clerk, Joel Crisp, Judge, ©

- C. B. Smith, Judge, and designated and ordered an election

to be held in said District of April 29, 1928, the above ques-

tion to be_voted on by the legal voters in said district on

the date fixed by the Board of Education in said order. An

election was held at Said time and place at which the above

question was submitted to the legal voters in said district,

with the result that 162 votes were cast for said bond issue

and no votes-were cast against same, all as certified to by

the election officers; and which election was later approved

by the Board of Education by order duly entered, in which .

it was provided that said Board unanimously agreed and

accepted the vote on said question, as reported by said elee-

tion officers. .

The order of approval was entered on May 10, 1929, at

page 175, in the book of proceedings of said. Board.- The

Board further directed, by order entered at page 176, in

said book, that the Chairman and. Secretary ofthe Floyd

County Board of Education be empowered to contract with

a bonding company for the sale of said school bonds, which

was done, negotiations having been made for the sale of

said bonds to Magnus & Company, a bonding concern in the *

city of Cincinnati, a resolution was duly adopted at.a regu-

lar meeting of said Board on July 2, 1929, in which, after

reciting the proceedings up to that time, the Board ordered

and directed that the bonds of Martin Consolidated School

District No. 3, Floyd County, Kentucky, be issued, in the

sum of $12,000.00, for the purpose of establishing, main-

taining and operating a public school for said district, said

bonds to be in the denomination of $1,000 each, numbered

“1” to “12” inclusive, to be dated July 1, 1929, and te mature

Palo

$1,000.00 annually on June 1 in each of the years 1935 to-

-1946, inclusive, and bearing interest at the rate of six per-

cent per annum, payable semi-annually in accordance with

coupons attached to said bonds, both principal-and interest

being payable at Fifth-Third Union Trust Company, in the

City of Cincinnati, Ohio. It was ordered that said bonds be

signed by the Chariman and Secretary of the Board, and

the sale of the Board affixed thereto, and that the coupons

bear the faesiniile signatures of said officers. The form of

the bonds was set out in said resolution, in which it was

recited, in substance, that they were issued under the gen-

eral laws of the Commonwealth of Kentucky, particularly ©

Sections 4426-2 and 4426-8 of Carroll’s Kentucky Statutes,

1928 Supplement, for the purpose: of establishing, main-

taining and operating a public school for said school dis-

trict. Said resolution further provided: “that for the pur-

pose of paying the interest on said bonds as it becomes due

and providing a sinking fund sufficient ‘to pay the principal

thereof at maturity, there is hereby ordered levied a direct

annual tax sufficient for said purpose, ‘said tax to continue

so long at any of said bonds are outstanding. The Taxing

authorities shall annually compute the amount and rate of

caid tax and the same shall be levied and collected as other

taxes are levied and collected, and the proceeds of the same’

shall be applied to no other purpose except that for which

same was levied.”

Allathe $12,000 worth of bonds described in said reso-

lution were issued and sold as therein directed and the

money turned over to said Board of Education, and which

was used in the construction of an additional building upon

the school site in the Town of Martin, above described,

which cost approximately the sum of $17,000.00, much the

larger part of the cost thereof being raised from the sale

of bonds voted by the legal voters in said district as herein-

above set forth. we {

37

Upon the completion of said building in the year 1929, ©

the Board of Education of Floyd County took over the con-

trol and management of said building and has used same

in conjunction with the original building erected on said

school. site in operating and maintaining a twelve grade

school for the patrons of said Martin Consolidated School

Distrigt. | g? :

While under the terms of said bond issue, subniitted to

and voted by the legal voters in said consolidated school

district, the Board of Education of Floyd County as to

annually compute the amount and rate of tax necessary to

defray the interest and principal of said bonds when and

as thé same became due, and that the proceeds: thereof

should not be applied to any purpose other than that for .

which same was levied, said Board has breached and failed

to observe said contractual obligations, in that they have

_ annually sinee the passage of said bond issue in the year

1929, levied and collected the full levy authorized by said

bond isue of 25 cents on each $100.00 worth of property in

said distriet, without regard to the requirements in paying

the interest and principal of said bonds, and said Board

also failed to set up a sinking- fund from the revenues so

received, with which to retire said bonds and, on the con-

trary, said’ Board has diverted the revenues collected each

year on the levy so voted by the taxpayers in the Martin

Consolidated School District and comnjingled same with

the general school funds of Floyd County, Kentucky using

only enough thereof to-pay accrued interest and each bond

‘when and as the same became due, and using the remainder

of said revenues for other purposes, and for the support:

of other schools in Floyd County outside of Martin Con-

solidated School District. Plaintiffs now call upon the de-

fendants to make an accounting which will accurately show

the full amount of all revenues collected and received ly

the Floyd County Board of Education, thru the levy of the —

‘

j

-)

a8 }

consolidated school tax, and also the 25 cent levy on account

of éaid bond issue, covering each of the years 1929 to 1938,

. ineélusive and that any excess in revenue collected and

turned over to Floyd County Board of Education from said

levies in Martin Consdlidated School District and

not used for. the purposes for which such taxes were voted,

and. authorized, be credited to the respective accounts of

Martin Consolidated School District.

Said Board of Education has collected from said special

- levies and particularly from the levies on account of said

bond issue, large sums in excess of the- amounts actually

used for the purposes for which said levies were voted by

the legal voters in said district, the exact amount however

not being known to the plaintiffs at ttle Yims, er WH

saat Geb acti 0d vat tad out habitat

OF tae C2kRNO weet of bands voted by the legil vetere

in Martin Consolidated School District, as hereinabove set

out, only bonds numbers, 2 and 3, in the face amount of

$3,000 have béen retired from the revenues collected and

turned over to said Board of Education on account of said

special levy of 25 cents on the $100 voted by the legal voters

in seid district, and there is now in the hands of said Board

of Education a considerable sum of Money, the amount of .

which is not known to plaintiffs, to the credit of said bond

: fund, but which has-been commingled with other school

funds of said County and not set apart in a sinking fund to

retire said $12,000 worth of bonds.

‘They state that through the contributions and donations

on the part of the citizens and taxpayers of Martin Con-

solidated School District herejnabove. described, supple-

mented in a «mall part by*the proportionate part ofthe

revenues belonging to said district out of the general school —

_... funds in Floyd County, there was developed a modern

school plant which has been used since the year 1929 by

Floyd County Board of Education in conducting a twelve

39

grade school for the benefit of all pupil children in Martin

Consolidated School District. This school plant, now lo-

cated on the ‘site hereinabove described is in the approx-

imate center of the corporate limits of the Town of Martin,

on the main State Highway traversing said town, and

easily accessible to at least 90 percent of the pupil children,

who are in such close proximity to said school that they can

conveniently reach same by walking only a short distance

from their homes without requiring transportation to be

furnished either by the County or by the patrons of the

district. The Town of Martin is closely built up, and of

the approximately 250 high school students who regularly

attend said school in its present locatign, at least 70 percent

live in the corporate limits of the Town of Martin, and only

some 20 or 25 who attend the school live outside of the dis-

trict. There are approximately 250 pupils in the elementary

grades who attend said school, and of this amber, af least

70 pereemt of them live in the corporate limits of the Town

of Martin; more than 90 percent of the students in said -

district who attend said school at its present location reside

in a radius of not exceeding one half mile of the school

plant, and most of them have access to an-improved high-

way and paved streets and sidewalks adjacent thereto,

for use in reaching the school at its present location.

The Town of Martin has a modern, up-to-date works

: system with filtration plant, which serves the school plant .

where it is now located, with pure water for the use and

‘benefit of the pupils attending said school. Said school ix

also equipped with electric lights from the power lines

located in said town, and with natural gas connected with

the main lines leading into said town, and is located on a

paved street leading thra said town, and there ix established

‘and maintained in said Town of Martin, an efficient police

force, who diligently enforce all laws and traffic regulations

s0 as to protect the children and pupils attending said

school; and there is an adequate sewer system now in use,

. os

snateeneindemane nineteen ~~

vw: ak =

.

which serves the school plant where it ix now located, and

the Town of Martin also contemplates, in the very near

future, the construction of a more modern and up-to-date

___. sewer system for the entire municipality.

Said town of Martin has a complete <ystem of street ~

lights, which light« are available at all times when needed

* to afford complete protection to the school plant when not

in use, atid also to serve the patrons and pupils of said \

school in attending various finction« and school activitiex

when condacted at night time. There ix also ample parking

space in close proximity to said «chool building on and

about the paved streets of the Town of Martin, to serve the

patrons of said school on any and all occasions when they

desire to attend any school activities being held or con-

ducted at said plant:

Although the taxpayers and patrons of said school, re-

siding in Martin Consolidated School. District, through their

concerted efforts and at great personal sacrifice on their

own part, have assisted in the establi<hment and develop-

ment of a high class school plant for the twelve grades iw

the Town of Martin and upon the site above described, and

which was the first «chool of it« kind e«tablished in Floyd

a the defendant«, Board of Education of Floyd

ounty and Charles Clark, Superintendent of School« have

oe Ara unlawfully, arbitrarily and without reasonable

diseretion, set about to, and unless restrained and enjoined

by proper orders of this court, will construct a néw school

plant at great expense near Eastern Kentucky, at whieh

they will order and direct all high school «tudent« within

the confines of Martin Consolidated School District to

attend, and will abolish the present high school now located

in the Town of Martin.

The Floyd County Board of Edecation at a meeting pre-

viously held undertook to purchase a site at Eastern, Ken-

tucky, for construction of a new high «chool to be a high

a

es

41

school to which the students of the Martin School District

would have to be transported by bus. :

The site was selected by the defendant, Board of Educa-

tion of Flovd County, Kentucky and purchased at a price

is not favorably situated for a high school.

It is approximately eight miles from the boundary line

of the City of Martin, and thirteen miles from Allen, Ken-

tucky, which is a part of the Martin School District; that

unless the pupils ‘who reside in the Martin School- District ;

are transported to this preposed new school by bus, ‘the

and teachers at such location except at an enormous ex-

Penee; there are no sewage lines leading from the proposed

new building; there is no police protection available for

the protection of the new building that might be constructed

upon the new site or for the protection of the pupils going

to and from said present new site on the highway or for the

maintenance of order in that.vicinity ; that there is po fire

protection available for the protection of the new building

that might be constructed upon said new site; that the near-

est fire department is located at the City of Martin, Ken.”

tucky, eight miles away. .

4. That in a previous suit late pending in this Court,

styled Orris Gearheart, et al. vs. Board of Education of

Floyd County, Kentucky, et al., the Floyd Cireuit Court,

after hearing all the proof, entered the following judgment :

“This cause, having been submitted to the court for trial

and judgment upon the whole case, and the court, upon

consideration of the pleadings, proof and exhibits, and being

fully advised, finds, orders and adjudges, as follows .

42

(1) That the Martin Consolidated School Distriet was

created and organized about the year 1923 and by agree-

_ ment between the citizens and taxpayers of said district

of the one part and the Floyd County Board of Education of

the other part, a twelve grade school was established in

the Town of Martin and within said Martin Consolidated

School District, ve twelve grade school, ever since has

been and is now bding maintained. The citjzens and tax-

payers of said district, as a part of said arrangement with

Floyd County Board of Education, purchased the school

site in the Town of Martin, for the sum of $15,000, which

was conveyed to said Floyd County Board of Education,

without charge, said parcel of land being valued by the

parties at the sum of $5,000.00 and in addition thereto made

substantial contributions toward cohstruction of the first

building on said site. A special consolidated school tax

was voted by the legal voters of said district about the year

1923 of 75¢ on the $100.00 valuation of all taxable property

in said district to supplement the revenues available from

the common ‘school levy for the runing expenses of said

school, which tax was reduced to o6¢ on $100.00 valuation

about the year 1928. Thereupon, by further agreement

between said Board of Education and the citizens of said

Consolidated School District, a second building ~was erected

on said school site in the Town of Martin and to pay part

of the cost thereof there was submitted to and voted by the

legal vgters of said district a bond issus of $12,000, the pro-

88 the sale of said bonds being used in the construe-

tion of said new brick building for use in enlarging the

twelve grade school already existing on said site; that the

original building which was a frame structure, is now being:

used for a gymnasium ax well as an emergency class, room

and that the County Board of Education has been repre

during the last school year, to rent rooms in the Yown of

Martin for one or more of the subjects taught in said school.

ceeds

48

Theré-is now being maintained a twelve grade school .

in said Martin Consolidated School District, established as

above stated and the Court is of the opinion that it would

be an abuse of discretion on the part of the defendants,

Board of Education of Floyd County, and Town Hall,

Superintendent of Schools; to discontinue, abandon or sus-

pend the teaching of any of the twelve grades at said school ”

now located in said district, so long as there is a sufficient

number of pupil children in said district to meet the legal

requirements or to require the pupil children of said dis-

trict in any of the twelve grades to attend school outside

of said district. ,

It is ordered, therefore, that the defendants, Board of

Edueation of Floyd County, Kentucky, and th¢ individual

members thereof, and Town Hall, Superintenittent of

Schools of Floyd County and their successors, and each of

them, are hereby directed to maintain the twelve grade |

school now located in the Town of Martin and within the

said Martin Consolidated School District, and to take any

‘and all appropriate action necessary’ and incidental thereto,

including the hiring of teachers, paying teachers’ salaries,

prescribing full and complete courses in the twelve grades

and defraying all expenses necessary and incidental thereto;

that said defendants and their successors in office and each

of them, be and they are hereby perpetually enjoined from

abandoning, discontinuing, or suspending the teaching of

any of the twelvé grades in said school now located in the

Town of Martin, and within the Martin Consolidated School

District, so long ‘as there is a sufficient number of pupil

children residing within -said district to meet the legal

requirements for maintaining a twelve grade school and

from requiring the pupil children in said district or any of

them, in all or any of said twelve grades, to atten? any

school located outside of said District, all to the end dhat-

said twelve grade school now located-in said Martin Con- .

i aati

4

;

44 |

ry? . ,

solidated School District shall continue to be maintained

and operated as a twelve grade school without being dis-

turbed.”

That <aid judgment is still in full force and effect and _

has never been reversed, repealed from, modified or altered

in any respect. A copy of said judgment is filed herewith

and marked Exhibit “” for identity.

That there are now in the Martin School District, re-

ferred to herein, more than sufficient pupils to meet the

legal requirements. ‘

~The nearest sewage plant to the proposed new site is

located in the City of Martin. The nearest Police Protee-

tion available for the protection of the proposed new build-

ing it located in the City of Martin. The nearest fire facil-

ities ix located in the City of Martin. The nearest doctors

and hospitals to the proposed new site are located in the-

City of Martin. In fact, the City of Martin is the center of

said district in fehich said school is to be constructed.

That the selection of the site at Eastern by the defend-

ants was and is a gross abuse of diseretion and was brought ~

about solely by political considerations; that there are at

least four sites in the City of Martin which are suitable for

construction of the new school building, all of which sites

were well known to the defendants when they attempted to

select the Eastern site.

In violation of the terms of said judimpent, above re-

ferred to, the defendants are unlawfully and illegally pro-

ceeding to and will unlawfully and illegally at 2:00 p.m.,

January 10, 1969 open bids for the construction of tlfe

school buildings on said new site and will unlaw fully and

illegally, unless restrained by this Court, attempt to enter

qinto a contract with the highest bidder for the construction

of such buildings on said nelw site. ”

That unless they are granted a temporary restraining

-order against the defendants and each of them from doing

45

-

the things hereinbefore complained of, great and irreparable

injury will result to the citizens, residents, patrons of the

Martin School District and they will be made to unjustly

suffer inconvenience and loss. |

That no injunction or restraining order has been asked

for and granted or refused by this Court on application of

these plaintiffs nor by any circuit judge or other office of

this Court; that they have no adequate remedy at law; that

great and irreparable injury and loss will be suffered by the

delay necessary in giving notice of this application for an

injunction or restraining order and in giving notice of their

intention to apply therefore. oe '

That the Floyd Fiseal Court as the agent of the Board

of Education of Floyd County, Kentucky, has advertised

that it will open Seal bids for the construction of th

school referred to hérein on January 10, 1969. A co}

said advertisement is‘ filed herewith and marked E

“1” for identity.

+ Wherefore, plaintiffs demand:

1. That this Court grant to them a temporafy restrain-

ing order enjoining and rest raining the defendants from:

a. - Constructing a high school or other school building

upon the site referred to herein. rhs oe

“b.* From accepting any bid or bids or awarding any con-

tracts for the construction of’ a high school or other build-

ing upon said site. 1 ee .

‘c. From discontinuing or removing the present high

school or atiy of the grades fronr the said school in the City

of Martin outside the. corporate limits. ,

_2.° Thiat said temporary restraining order be made per-

manent and that a permanent injunction be issued herein

enjoining the said defendants and-each of them from doing

any of the acts herein above enumerated, |

46

3. That they recover their costs and be granted all

other relief to which in equity they may appear entitled,

both general and special. ~

Dated: January 10, 1969.

s/ Joe Hobson

Prestonsburg, Kentucky

Attorney for Plaintiffs

State of Kentucky

County of Floyd oe

The affiant, Clynard Jones, states he is one of the plain-

tiffs and that the allegations of the above and foregoing

complaint are as true as be believes.

s/ Clynard Jones

Subscribed and sworn to before me, this 10th day of

January, 1969. | Ts

| s/ Joe Hobson

~~ Notary Public, State of Ken-

" tucky, at Large

No. 6953?

Filed 10 day of Jan., 1969 | <a

Summons and 6 Copies Issued

Frank DeRossett, Clerk |

By s/ D. Anderson,. D.C. ‘

; APPENDIX F - | |

- IL )

Neither the Floyd Circuit Court Nor This Court Has Juris-

diction to Set Aside the J udgment Entered on Jan-

uary 21, 1939, Because Such an Action Would Deprive

', the Citizens of the Martin Consolidated School District

of the Property Rights, Acquired Under Said J udg-

ment, Without Due Process of Law and Will, There-

fore, Be Repugnant to thé Fourteenth Amendment to

the Constitution of the United States. :

The citizens of the Martin Consolidated School District

contributed a large amount of money to the building of the

school facility at Martin and voted to levy taxes for this

purpose. -Furthermore, by agreentent between the Board of

Education. and the citizens of the Martin Consolidated

School District, a second building was erected in the Martin

Consolidated School District and to pay part of the cdst of

this building, the legal voters of the Martin Consolidated

School Distriet voted a bond isue of $12,000.00, the proceeds

. from which were used in the construction of the new Srick

building for use in enlarging the said 12-grade school al-

ready existing on the site (Tr., First Appeal, pp. 18-21).

The citizens of the Martin Consolidated School District,

therefore, acquired property right by reason of the entry

of said judgment and neither the Floyd Cireuit Court nor

this Court have jurisdiction to vacate. or modify any of the

provisions of said judgment as such action would deprive

the citizens of the Martin Consolidated School Distriet of

their property rights without due process of law and would

be in irreconcilable conflict with the Fourteenth Amend-

‘ment to the Constitution of the Tnited States.

48

In the case of Pennsylvania Co. v. Scott, 144 A.L.R. 82

the rule on this question is thus stated:

“There are two reasons for this limitation of legis- .

lative power; one, that a judgment is property of

which, under state and federal constitutional prohibi-

tions, the judgment creditor cannot be deprived without

due process of law; the other, that under our system of

the division of governmental powers the legislature

cannot ‘invade the province of the judiciary by wter-

* fering with judgments or decrees prev iously rendered.”

(Our Emphasis. )

To the same effect, seé the following cases:

Arnold & M. Co. v. Industrial Commission, _ Ill. 2 ol,

145 N. E. 342, 40 ALL. R. 1470;

Springstun v. Springstun, 151 Wash. 109, 229 Pac. 14,

40 A, L. R. 590.

‘The Federal Courts are committed to the same rule. ,

Collins vy. Welsh, 75 Fed. 2d 894, 99 A. L. R. 1319.

A petition seeking a writ of certiorari was filed with the

Supreme Court, but the petition was denied by that Court.

Collins v. Welsh, 295 U.S. 762, 79 L. Ed. 1704, 99°

S. Ct. 921.

IN THE

- SUPREME COURT OF THE cue ‘7 TS

October Term 1972

No. 71-1312

JAKE LAYNE, ETAL - - - - Petitioners

| versus | | -

BOARD OF EDUCATION OF FLOYD COUNTY.

KENTUCKY, ETAL. - = | Repondents

RESPONSE TO PETITION FOR WRIT ©

‘OF CERTIORARI __

DAN JACK COMBS

' 2Y07 Caroline Avenue

Pikeville, Kentucky 41501 _

Attorncy for Responde: és

WESTERFIELD-BONTE CO., INC., 619 W. KENTUCKY, LOUISVILLE, K¥.

ee

TABLE OF CONTENTS

bo to

: PAGI

Statement of the Question Presented....... Peper rr 4

Statement... ........ Rs 38, sere RNC ei tie aii

_ Argument—There Is No Basis on Which to Grant the

Sa AME Ric aie ores Seb so ar wre ee awe sang De Bry ona ee hea

Younger y. Harris, 401 U. S. 37. Pe bee ected

Atlantic Coastline Railway Co. v. Engineers, 398

1, Te DBE. oo 5 PR CaS PE A a eating inh OR te ov ree ee

CIPI ss nn < wevcnsaa wes SOL UR pan fares 6 Nee em a

ZY

IN THE

SUPREME COURT OF THE UNITED STATES }

October Term 1972

No. 71-1312 —

JAKE LayNE, Er Au. . -- - - - Petitioners

Vv. a

- Board or Epucation or -FLoyp County,

Kentucky, Et Au. - " - - Respondents |

RESPONSE TO PETITION FOR WRIT

, OF CERTIORARI

STATEMENT OF THE QUESTION PRESENTED

Is there any substantial ground for granting a writ

of certiorari to review the judgment and opinion of.

the Court of. Appeais of Kentucky ?

STATEMENT

The statement of petitioners is reasonably aceurate—

insofar as it goes. However, it overlooks the fact that —

changing circumstances and senditiens require govern-

mental agencies, such as school boards, to exercise dis-

eretionary powers to accomplish the greatest benefit to

the greatest number of people. .

ARGUMENT

he Court of Appeals of Kentucky ae ruled that

the doctrine of res judicata does not apply in this case

for two reasons: | |

I. A smali segment of persons purporting to repre- .

sent the City of Martin could not bind a pe body

representing all of Floyd County. |

2, A school board cannot lose ‘its discretionary

powers through litigation. | -

The Federal Courts should. use great caution in in-

terfering with the Judgments and orders of the state

courts. | |

: Younger vy. Harris, 401 U. S. of.

Any doubt as to the propriety of Federal Courts

to overturn the judgment of a state should .be resolved

in favor of permitting the state court to proceet in -

an orderly fashion.-.

i. : . '

Atlantic Coastline Railway Co. v. Engineers, 598

U.S. 281. |

The opinion and. judgment ‘of’ the state court -

‘based upon sufficient facts, sound logie and legal prin-

ciples. We are unable to find any justifieatiou for

granting the writ. ; :

™~.

CONCLUSION

The case was carefully considered by the Court of

Appeals of Kentucky. .The ruling was in accordance

with the laws of tfState of Kentucky and the United

States. The Stat& Court interpreted the effect and

3

legality. of a prior judgment. Petitioners were not

parties to the action resulting in that judgment. The

judgment in this case could n@ have beén repugnant

to any title, right, privilege or Jmmunity which they

night have had. They kad none. No coustitutional

question was involved and there is’ ng grotnd -for a_

writ of certiorari. |

Respectfully submitted, oe

Dan Jack Comps

207 Caroline Avenue

' Pikeville, Kentueky 41501

. Attorney for Respondents