The plan adopted in this case by the Scott County Board of Education is not the statutory one provided by sections 4421-20 et seq. of Baldwin's 1936 Revision of Carroll's Kentucky Statutes, since it by its express terms is made to apply "solely to school buildings constructed with financial assistance from the Federal Government." The plan adopted and approved by the court is an outgrowth of the one first judicially declared by this court in the case of Waller v. Georgetown Board of Education, 209 Ky. 726, 273 S.W. 498, and in others thereafter rendered extending the plan, one of the latest of which is Bellamy v. Ohio County Board of Education,255 Ky. 447, 74 S.W.2d 920. In the Waller Case it was made applicable only to the encumbering of a single piece of property with the amount of the cost of the improvements proposed to be made thereon. When so confined each item of property would be made to bear its own burden. The question, as to whether that *Page 491 policy could be departed from by expanding the right so as to permit other units or items of property owned by the board of education to be encumbered under the plan to secure funds with which to improve an entirely separate and distinct item of property, has never been presented, argued, or expressly determined by this court, although such a departure may have been involved in some of the cases, but to which the attention of the court was not called. The same may be true as to summary determinations made by members of this court in applications relating to injunctions pursuant to the provisions of section 297 of the Civil Code of Practice. If, therefore, it be error — as against sound public policy — for the judicially declared plan to be so expanded as to allow the encumbrance of unimproved school property to secure funds with which to improve other and distinct pieces of school property, the court should not hesitate to so declare in this case, which, as indicated, is the first one where the question was presented and argued. Of course, such a declaration would not affect any of the bonds or undertakings heretofore entered into and approved by the court, although the improper encumbrance of unimproved school property with the funds realized, was made in such cases.
The plan, after all, is but a detour around that which was unlawful before the plan was declared; but by this dissent I do not purpose to question our former opinions, if the plan they approve is confined and restricted as it was presented in the Waller and many other following cases, i. e., that the raised funds were secured only by the parcels of real estate upon which the expenditure was made, and only to that extent. The authority approved and upheld by the majority opinion confers the right on a county board of education to so encumber every schoolhouse and grounds, under its jurisdiction to secure the amount of an improvement that might be made only on one of them. That unrestrained plan might result, not only in plastering the school property in all of the territory within the county with encumbrances, but it opens the door for an ambitious board to engage in the erection of a building or other improvements on a single lot or piece of school property far beyond the necessities of the case, and the cost of which could never be realized on a sale of that particular lot, if foreclosure should eventually be resorted to. Not only so, but the plan as so approved by *Page 492 the majority opinion destroys all incentive or employment of precautionary measures that would otherwise be advanced by the purchaser of the bonds to limit the expenditure within reasonable bounds, since now they no longer become interested in what a sale of the specifically improved property would produce, because they know that all of the other encumbered school property within the district is also pledged for the same indebtedness and there would not, therefore, be any deficiency in payment after exhausting the lien on the improved piece of property. Were it otherwise and the right restricted as herein advocated, the bondholder would be limited to the lien on the particular piece of property improved for the amount spent on it, and he would be extremely interested that such amount be so limited as that there would be a reasonable certainty of realizing it by a sale of that particular piece of property, if it should become necessary to do so. Such consequences, to my mind, create a situation where it ought to be declared as against public policy for such boards to encumber any particular piece of property in their charge for any amount over and above the improvement to and uponit. Each piece of school property within the district should carry its own burden. Potent and most highly probable evils resulting from a contrary course, as approved by the majority opinion, are many and are so patent that I will mention no others than the ones referred to. Because thereof I dissent from the opinion approving what I have seen proper to denominate as the "expanded" plan.
I also find myself unable to agree to the stipulation in the set-up, whereby the school county district, through and by its board of education, agrees to pay all taxes that might be assessed against the holders of the bonds proposed to be issued as intangible property, including any and all income taxes that such holders might be called upon to pay as income from the interest that they obtain from their investment. Under that agreement, which the majority opinion also approves, the bondholder becomes entitled to collect from the district any and all taxes, ad valorem, income, and otherwise, that he might be required to pay as such holder by any jurisdiction wherein his bonds occupy a situs for taxation. That agreement is broad enough to and does embrace federal taxes, state taxes, county and municipal taxes, school taxes, and every other kind that it is lawful *Page 493 to levy and assess at the place where the assessment is made. I can readily see where it is not only competent but proper for encumbrances to stipulate for the repair, care, protection, and maintenance of the encumbered property and keep it insured, but I am wholly unable to give my approval — in the absence of plain legislative direction — to a plan whereby a public functionary might legally agree to pay all taxes against the holders of its indebtedness representing intangible property in their hands. Individuals might well so agree, but I think that a sound public policy forbids any such agreement by fiscal officers of divisional units of government, since the underlying principle of public policy is, that "no one can lawfully do that which has a tendency to be injurious to the public or against the public good." 50 C. J. 858; Gordon v. Gordon's Adm'r, 168 Ky. 409, 182 S.W. 220, L.R.A. 1916D, 576, Ann. Cas. 1917D, 886; and numerous other domestic cases cited in Caldwell's Kentucky Judicial Dictionary under the heading "Public Policy." In support of that stipulation, however, it is argued that by so agreeing the county board of education obtains a corresponding reduction in the rate of interest; but which is only problematical, and only furnishes a weapon with which to fight the battle of the bondholder in the war waged by him to sustain the argument.
Furthermore, the upholding of that (tax payment) stipulation by the majority opinion greatly confuses and potentially unsettles the amount of annual rental that the board of education might eventually be called upon to pay for the use of the encumbered property in operating the public schools of the county. The amount so agreed to be paid, as contained in the set-up, was calculated and fixed. Refunds for taxes paid by the bondholders will operate to increase that amount and there is no method by which such increase, if it should occur, can be measured. There are other reasons why this stipulation should not be approved, but what has been said upon this and the other point upon which I disagree is sufficient, as I conclude, to sustain my position without further analyzing the situation whereby that position could be strengthened.
If I did not deem the questions of super-importance, I would not dissent — much less express my dissenting views in a separate opinion. *Page 494