concurring.
I concur with the majority opinion only to the extent that it holds that an efficient system of common schools has not been provided throughout the state. The General Assembly has not yet succeeded in achieving the constitutional goal directed by Section 183.
I further specifically agree that the majority does not require the General Assembly to pass any law or authorize the adoption of any regulation. All that the General Assembly must do is comply with the constitutional direction to provide, through appropriate legislation, an efficient system of common schools throughout the state. I also agree with the majority that a class action is not properly before this Court. CR 23. I further concur with the opinion to the degree that it does not endorse the so-called Corns plan and that it condemns the use of the committee report and any payments in connection therewith. I concur that this Court does not retain any open-ended continuing jurisdiction.
I agree that the finality of this decision should be withheld because to do otherwise would result in educational chaos to the degree that the system of common schools is unconstitutional. However, I would not give the General Assembly any particular deadline with the understanding that adjournment sine die contemplates adjournment without any future date being designated for resumption. This situation can easily be addressed procedurally by the legislature.
I agree with the majority opinion when it cites Prowse v. Bd. of Education of Christian Co., 134 Ky. 365, 120 S.W. 307 (1909), in that a system that will be most efficient is for the judgment of the General Assembly. For similar statements of the law see City of Louisville v. Board of Education, 302 Ky. 647, 195 S.W.2d 291 (1946); Elliott v. Garner, 140 Ky. 157, 130 S.W. 997 (1910); Madison County Board of Education v. Smith, 250 Ky. 495, 63 S.W.2d 620 (1933). Such a matter is within the sound discretion of the General Assembly, and the Court will not substitute its judgment for that of the legislature and will not interfere with the actions of the legislature.
My principal area of departure from the majority opinion relates to the matter of service on the members of the General Assembly. I do not believe that service on two members of the General Assembly acts as service on the remaining 136 members. The holding of the majority must be strictly limited to the unique circumstances presented in this case.
This action is unique because this Court has not been asked to declare a single act of the legislature unconstitutional. Relief is sought by means of a declaration that the system is unconstitutional because it is not efficient.
Clearly this Court does not have any authority to order the other members of the General Assembly to take any action when they have not been properly summoned before any court or been given an opportunity to be heard in regard to this proceeding. Obviously the two members who have been properly served have presented a comprehensive defense and it would not serve the ends of judicial economy in this voluminous litigation to remand the case solely because of the failure to join the members of the General Assembly individually. I believe this Court can only express an advisory opinion regarding the matter of an efficient system of common schools throughout the state as to the members of the legislature other than Rose and Blandford.
In one sense, too much emphasis has been placed on the role of the legislature in the entire educational framework of the Commonwealth. We must keep in mind that the primary responsibility for the education of children is with the parents. The rights and responsibilities of the parents must always be recognized. The fractured fabric of the family is one of the prime causes for educational failure. Obviously money alone cannot heal such a break. *219The lack of scholastic success is not just the fault of the system. Education is a joint venture in which the parents, students and school must be committed to cooperation rather than conflict. As the child advances in age, the educational system must respond by meeting different needs tailored to the specific circumstances of the child. Consequently, the involvement of the state public common school system must be different as needed in each educational situation. Our concern should be primarily focused on the common schools at the primary level.
The circuit court ruling is far too broad and undisciplined as to its conclusions regarding education as a fundamental right. What is a right is what has been promulgated in the 1890 Constitution, that is an efficient system of common schools throughout the state. The majority decision does not order the General Assembly to do anything, however, great care must be taken that independent lawsuits should not be frivilously spawned by such a decision. “Scarcely any political question arises in the United States,” Alexis de Tocqueville wrote long ago in Democracy in America, “that is not resolved sooner or later, into a judicial question.” Proper use of the judicial system is inherent in our system of representative democracy under law, however, great care must be taken to avoid an abuse of the system particularly so that it would not lead to disillusionment and frustration.
Although the majority opinion declares the entire system of education unconstitutional, it should be obvious to any student of government that an overwhelming percentage of the laws now in place must be reenacted by the legislature to provide any form or substance to the system in Kentucky.
The school system is based on many detailed statutes and regulations, none of which have been specifically challenged and many of which have no constitutional impact. Local effort cannot be destroyed; such a conclusion would not be efficient by any definition and is well beyond the scope of the relief sought in this action.
It is beyond question that educational opportunity should be equal for all Kentucky children. The General Assembly has the constitutional responsibility of providing a minimum level of opportunity by establishing an efficient system of common schools throughout the state. Under no circumstances does that mandate preclude local school districts from supplementing the funds received from the state by specific local effort. Although such local taxes may now be considered as state taxes, Cullinan v. Jefferson County, Ky. 418 S.W.2d 407 (1967), they should be treated as trust funds and scrupulously attributed to the local district involved. The General Assembly might wish to make such treatment a statutory reality. The total independence and authority of local school districts to supplement any state effort should be carefully preserved.
The only concern we might have is to what specific areas the legislature will change. Such a determination is totally within their authority. It may be that they will properly determine that they must only fine-tune certain aspects of the system. Obviously they should not throw out the good with the bad without careful thought and particular attention to detail. My concern is that the language of the majority is too sweeping when it asserts that the result of the decision is that the entire system of common schools is unconstitutional. We must leave it to the good common sense of the legislature to develop an appropriate system of legislation.
Great care must be taken to differentiate the holding of the majority from dicta that arises from the many words used in the opinion. As an example, references to adequacy, a unitary system and definitions of efficiency are not binding on the General Assembly in any sense.
I concur with the majority in again emphasizing that the sole responsibility for providing a system of efficient common schools throughout the state lies with the General Assembly. That is the sole holding of this case.