Affirming.
The County Board of Education of Kenton County sued the Commissioner of Finance and other State officers setting forth its responsibilities and duties under the law to provide school facilities for the children of the county, and alleging that it was entitled to receive for the year 1937-1938 from the State Treasury $6,915.24, but that the Commissioner of Finance had refused to approve the requisition therefor issued by the Superintendent of Public Instruction, and without authority of law had caused a deduction of $2,836.00 to be *Page 545 made and paid to the Department of Revenue. Injunctive relief was prayed.
In a few days the Commonwealth, on relation of the Commissioner of Revenue, sued the Board of Education of Kenton County, charging that the Board had purchased, without the State and imported, between December 7, 1935, and February 21, 1936, 16,205 gallons of gasoline on which it was required to pay a tax of five cents a gallon under the terms of Chapter 150, Section 1, of the Acts of 1932, which was as follows:
"A State tax of five (5) cents per gallon is hereby imposed on all gasoline, as defined herein, sold in this Commonwealth at wholesale as the words 'at wholesale' are hereinafter defined. * * *
"The words 'at wholesale,' as used in this act shall be held and construed to mean and include any and all sales made for the purpose of re-sale or distribution, or for use, and, as well, the gasoline furnished or supplied for distribution within this State whether the distributor be the same person who so furnished the same, his agent or employe, or another person; and also to mean and include any person who shall purchase or obtain gasoline without the State and sell or distribute or use the same within the State."
The petition set out that that act was repealed at the 1936 Third Extraordinary Session of the General Assembly by Chapter 6 of the published acts for that session, now Section 4281g-1 et seq., Statutes, and between September 5, 1936, and January 3, 1938, the Board had in like manner bought 40,515 gallons of gasoline under that act, which provides in part as follows:
"An excise tax of five (5) cents per gallon is hereby imposed on all gasoline received in this Commonwealth as the word 'received' is hereinbefore defined in this Act. * * * When it shall have been caused to be imported into the State of Kentucky by any person for use, distribution, or delivery and sale and when it shall have been placed in tanks or other containers for use or subject to withdrawal for use, distribution or sale and delivery." Section 4281g-2.
It was further charged that the Board of Education *Page 546 had failed and refused to procure a license as a wholesale dealer in gasoline or to file a bond with the Department of Revenue as provided by the act of 1932 (Chapter 150, Section 7a) and the Act of 1936 (Chapter 6, Sections 18 and 19 of the Third Extraordinary Session, Kentucky Statutes, Sections 4281g-17, 4281g-18) and had refused to make the reports required by that act. The petition claimed the Board was liable for a penalty of 20 per cent on the amount found to be due, and interest from the date when due until paid; and also an additional penalty of 20 per cent when the amount is collected by court proceedings. Accordingly, judgment was prayed for the principal sum of $2,836 and a penalty of $1,134.40 with interest on certain sums from various dates beginning with January 31, 1936.
The two suits were consolidated. The substance of the Board's pleading is as follows:
1. The Board is charged with the duty under the Statutes of providing transportation for two thousand school children of the county outside of the cities, over an area of 160 square miles; the only practical and economical means of transporting them is by motor busses and the most economical method is to purchase gasoline in tank car lots and handle and distribute the same at convenient points with its own facilities. All of the gasoline was used exclusively for that purpose. The Board is not a dealer or distributor of gasoline or empowered as such within the meaning of Section 4281g-1, Subsection (c) or Section 4281g-2 of the Statutes.
2. The only revenue available to the Board out of which any taxes claimed to be payable on the gasoline could be paid is that provided by "taxation * * * for purposes of common school education," which is irrevocably dedicated and appropriated to the common schools and to the other purpose by the terms of Section 184 of the Constitution.
3. By the provisions of Section 184 of the Constitution, the revenue for school purposes cannot be diverted or appropriated for construction, maintenance or repair of roads or bridges, the purposes for which the gasoline tax is levied.
4. The Board submitted its budget for each fiscal year to the State Board of Education as required by the *Page 547 statute and the same was approved. By the terms of Section 4399-45 of the Statutes, the County Board of Education and the members thereof are prohibited from spending any money in excess of that shown in the budget or for any other purpose than shown therein. That in none of the years mentioned were any funds provided for with which to pay taxes on gasoline.
5. The payment of the tax sought to be collected would necessitate the reduction of the school term, affect the scholastic standing of the children of Kenton County, and result in their disqualification from entering recognized standard schools of learning which require 9 months' high school per year as a prerequisite to admission, and would otherwise prevent the Board from performing the duties imposed upon it by law.
6. The Board is now levying and has for many years continuously levied the maximum tax permitted by law.
7. As justification for exclusion from its budget of any provision for the payment of the gasoline tax, the Board pleads that an action was filed in September, 1934, in the Kenton Circuit Court by the Revenue Agent for the State-at-Large against the Kenton County Board of Education seeking to recover the tax on gasoline consumed in its school busses and a judgment was rendered by that court in February, 1936, adjudging the Board not to be liable for the tax, and that judgment is still in effect. It is pleaded in bar of the Commonwealth's right to collect the taxes sought in this action.
8. The Board challenges the contention of the Commonwealth that the Act of 1932 was re-enacted by the Act of 1936. It argues that the title to the latter act is confined solely to the imposition of a tax and the repeal of certain sections of the existing statutes, which relieved it of the payment of the tax under the 1932 act.
The judgment rendered upon the pleadings was in favor of the Commonwealth against the County Board of Education for the tax and penalties, amounting to $3,970.40, and interest, and authorized the deduction of the entire sum from the amount due the Board as its part of the general school fund. Such judgment, of course, carried with it the refusal to enjoin the Commissioner of Finance and other officers as sought in the first suit. *Page 548
The arguments made on the appeal in behalf of the Board of Education follow its pleadings as demonstrating reasons for its exemption from the tax. The Commonwealth's arguments on the principal questions are that the Statutes do not expressly exempt school boards from the payment of the tax; its payment is not a diversion of school funds; the Board of Education is not authorized to buy gasoline in large quantities and set up its own distributing facilities; public policy forbids such boards dealing in gasoline or engaging in commercial activities; the exemption provisions of Section 170 of the Constitution relate only to property and ad valorem taxes; and on the plea of res adjudicata that the first judgment was not final.
It seems to a majority of the court that there is involved only the question of exemption from payment of the tax by the Constitution. Neither the 1932 nor the 1936 act exempts any person or corporation, either public or private. In authorizing or requiring school boards to transport or to provide for the transportation of pupils under certain conditions to be paid out of their general funds, Section 4399-20 of the Statutes is silent on the point.
Section 170 of the Constitution exempts from taxation "public property used for public purposes; * * * institutions of purely public charity, and institutions of education not used or employed for gain by any person or corporation, and the income of which is devoted solely to the cause of education."
As is pointed out in City of Louisville v. Cromwell, 233 Ky. 828, 27 S.W.2d 377, the interpretation of these parts of the section is that the first exempts public property from ad valorem taxation only while the second exempts the described institution personally, that is, frees them from the payment of licenses and taxes of every class. As the gasoline tax is an excise tax, we held in that case that the City of Louisville, as a public corporation, was not exempt from its payment.
In 8 Blashfield's Cyclopedia of Automobile Law and Practice, Permanent Edition, Section 5289, it is declared upon the authority of a number of cases:
"Although the contrary view has occasionally been adopted, the great weight of authority is that in the absence of a clear exemption by the lawmaking *Page 549 body, the general levy of a tax on the sale or use of motor vehicle fuel includes fuel bought or used by counties and municipal corporations, including quasi municipal corporations such as school districts. One of the reasons sometimes assigned for this rule is that the tax is levied against the distributor as distinguished from the municipality as consumer, but on the other hand it has been held that as used in the particular tax statute, the term 'distributor' or 'dealer' includes a county or municipal corporation. Moreover, with reference to counties, it has been held that a county is not a municipal corporation within a tax exemption applicable to municipal corporations."
The same is disclosed by Annotations, 60 A.L.R. 878; 67 A.L.R. 1310; 84 A.L.R. 839, 857, 874; 111 A.L.R. 198, 205. A county board of education is a quasi municipal corporation, governed by rules applicable to strict municipalities. Section 4399-18, Kentucky Statutes; Board of Education of Newport v. Scott, 189 Ky. 225, 224 S.W. 680. In Independent School District v. Pfost, 51 Idaho 240, 4 P.2d 893, 84 A.L.R. 820, it was expressly held that the state may on behalf of its highways department demand an excise tax on gasoline used by a school district and that there was no implied exemption found in the statute. And it has been so held in State Tax Commission v. County Board of Education, 235 Ala. 388, 179 So. 197, and in Gulf Refining Company v. School District, 109 Pa. Super. 177,167 A. 620. For the reasons stated in the City of Louisville case, we are of opinion that Section 170 of the Constitution does not exempt county boards of education from the payment of the gasoline tax.
Section 184 of the Constitution provides, in part that "any sum which may be produced by taxation or otherwise for purposes of common school education, shall be appropriated to the common schools, and to no other purpose."
It is argued that to take a part of the yield from the common school taxes to pay the gasoline tax, all of which excepting the cost of collection goes to the building and maintenance of highways of the state, violates the mandate of the Constitution. What are purposes of common school education is a matter of opinion; and, unless the *Page 550 particular item of expenditure is extreme or clearly otherwise, the legislature has the right to declare it to be such a purpose. It has provided for the transportation of children to and from the schools, the cost to be paid out of general school funds, and this legislation has not been questioned as being other than legitimate. Transportation by automobile, as is contemplated, obviously requires the purchase of motor fuel, and by failing to exclude the specific excise tax from the amount paid therefor, it may be said that the legislature intended that it shall be included as a part of the cost of the transportation and therefore it should be regarded as an appropriation by the legislature of a portion of the school fund for that purpose. It is to be noted that Section 2739g-7, Statutes, relating to the free registration of cars owned by the federal and state governments and municipalities and the procurement of license plates therefor, and Section 2739j-1, which imposes a tax on the transportation of passengers by motor cars, expressly exclude school busses from their provisions. Section 1342a-1 exempts individual school children and school busses and other vehicles used exclusively in the transportation of children to and from school from the payment of bridge tolls. The exclusion in these instances suggests the purpose to include the other tax. To say the Constitution prohibits that would be to say that the tax on every other item of cost entering into the transportation of school children must be taken out, and that where school boards provide for the transportation of pupils by contract the contractor is relieved from the payment of the gasoline tax. It was held in Board of Education v. State Tax Commission, 237 Ala. 434, 187 So. 414, that the use of school funds to pay a similar tax was not prohibited by a constitutional provision that all school funds shall be "faithfully applied to maintenance of public schools."
We do not think there is any merit in the contention that the repeal by the 1936 act of the 1932 act referred to released the board of education from the payment of taxes accruing under it. Section 465, Kentucky Statutes.
The plea of res adjudicata cannot be sustained for, as disclosed in this record, the last order in the case filed by the Revenue Agent for the State-at-Large in the Kenton Circuit Court, seeking to collect a similar tax on *Page 551 other gasoline, was not a final judgment since it merely sustained a demurrer to the petition and did not dismiss it.
The judgment in each case is affirmed.
Whole Court sitting.
Chief Justice Rees and Judges Thomas and Perry, dissenting.