Hemingway, J.
This case involves the question of the liability of a public school house to assessment under the provisions of the digest with reference to ‘ ‘ assessing property for local improvements in cities of the first class.” Mansf. Dig. sec. 825 et seq. The school board contends that the school house is not liable to such assessment, while the board of improvement contends that it is. It is conceded that the improvement district was regularly organized, and that the school' house is embraced within it; the contention is that because it- is a school house, belonging to a public school board, it is not liable to the assessment. The claim of exemption is placed : first, upon the fifth section of the sixteenth article of the Constitution of 1874, which provides that ‘ ‘ public property, used exclusively for public purposes, churches used as such, cemeteries used exclusively as such, school buildings and apparatus, libraries and grounds used exclusively for school purposes, and buildings and grounds and materials used exclusively for public charity,” shall be exempt from taxation ; and, second, upon the terms of the act that regulates the assessment of property for local improvements, and describes the property to be assessed simply as “ all the real property situated in the district.”
We have no difficulty in disposing of the first ground relied upon. The rule established by a consensus of authorities — text writers and adjudged cases — is that the constitutional exemption refers alone to taxes for general purposes of revenue, and has no reference to special taxes or assessments for local improvements. If the case of Peay v. Little Rock, 32 Ark. 31, is an authority against it, that of Davis v. Gaines, 48 Ark. 370, is in support of it; and if there be any conflict between these cases, we approve the latter, as right upon principle and in line with the authorities. Cooley, Tax’n, (2d ed.), p. 207, and cases cited.
As to the second ground relied upon to sustain the claim of exemption, we find the authorities divided. The argument in favor of the exemption is that as the statute, in defining the property to be assessed, does not expressly mention public property or include it by any necessary implication, the presumption is that it was not intended to be assessed.
A leading case in support of the contention is Worcester County v. Worcester, 116 Mass. 193. The question there arose upon the liability of a court house to assessment by a sewer district. The court held that, although it was not exempt by the statute, which had reference to general taxes only, it was free from taxation ; because, being public property, acquired by public funds, managed by public authorities, constituting an instrumentality for the performance of public functions, it was not to be deemed a subject of taxation, either general or special, unless the intent of the legislature to render it so clearly appeared.
In the case of the City of Atlanta v. First Presbyterian Church, 12 L. R. A. 852, the question of the liability of a church to assessment was presented to the Supreme Court of Georgia. The statute provided that all real estate abutting on the street improved should be assessed, and the contention was that churches were expressly exempted from taxation, and that if the exemption applied to general taxes only, it implied an exemption from special taxes or assessments. The court held that the statutory exemption furnished no immunity from the special taxes, and that there was no implied exemption in favor of churches ; but in discussing the latter question Judge Bleckley said: “We can be morally certain that they (the terms of the act providing for the assessment) comprehend more than the legislature intended they should ; for they cover, by their letter, public as well as private property, and subject the whole alike to assessment, lien, levy and sale. That the public property of the United States, the State, county or the city was intended to be dealt with thus is so improbable that we can have no hesitation in holding that an implied exception as to all public property can and should be engrafted upon the act by construction.”
In the case of the County Com'rs, etc., v. Maryland Hospital, 62 Md. 127, the question arose upon the assessment of property held by the Board of Managers of the State Hospital, for street construction. The court said “that to bind the land of the State in any way that may divest it from the State, or destroy or impair one of its established agencies or means for carrying on its functions, the legislature must unequivocally give its sanction. * * * It is not material whether the State’s property may be taken from it by a tax in the nature of assessment for benefits or in some other way. The danger exists of taking that which belongs to and is essential to the State ; and it cannot be exposed to this danger without its direct sanction.”
A like conclusion has been reached by other courts. City of Toledo v. Board of Education, 26 N. E. Rep. (O.), 403 ; Edgerton v. Huntington School Twp. 126 Ind. 261; State v. Hartford, 3 Am. & Eng. Corp. Cases, 610.
Although a special tax or assessment is not usually embraced within the meaning of the general term “ tax,” the rule under which public property is presumed to be exempt from one justifies the presumption as to the other. In speaking of the latter, Judge Cooley says: “Some things are always presumptively exempted from the operation of general tax laws, because it is reasonable to suppose they were not within the intent of the legislature in' adopting them. Such is the case with property belonging to the State and its municipalities and which is held by them for governmental purposes. All such property is taxable, if the State shall see fit to tax it; but to levy a tax upon it would render necessary new* taxes to meet the demand of this tax, and thus the public would be taxing itself in order to raise money to pay over to itself, and no- one would be benefited but the officers employed whose compensation would go to increase the useless levy. It cannot be supposed that the legislature would ever purposely lay such a burden upon public property, and it is therefore a reasonable conclusion that, however general may be the enumeration of property for taxation, the property held by the State and by all its municipalities for governmental purposes, was intended to be excluded, and the law will be administered as excluding it in fact.” Cooley on Taxation (2d ed.), p. 172.
It is uniformly conceded that this rule is correct when applied to general taxation ; the reason sometimes, given for it is the improbability that the legislature would levy a tax upon that which results from a tax, and must be replaced by a tax, and which is used for governmental purposes ; another reason is found in the rule of statutory construction which presumes that the legislature never intends to affect or transfer any gov^ ernmental right or property, unless it expresses its intention to do so in explicit' terms or makes the inference irresistible. Whichever be the true reason of the rule, it is well settled; and we think it should apply alike to special, and to general, tax laws.
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Hemingway, J.
This case involves the question of the liability of a public school house to assessment under the provisions of the digest with reference to ‘ ‘ assessing property for local improvements in cities of the first class.” Mansf. Dig. sec. 825 et seq. The school board contends that the school house is not liable to such assessment, while the board of improvement contends that it is. It is conceded that the improvement district was regularly organized, and that the school' house is embraced within it; the contention is that because it- is a school house, belonging to a public school board, it is not liable to the assessment. The claim of exemption is placed : first, upon the fifth section of the sixteenth article of the Constitution of 1874, which provides that ‘ ‘ public property, used exclusively for public purposes, churches used as such, cemeteries used exclusively as such, school buildings and apparatus, libraries and grounds used exclusively for school purposes, and buildings and grounds and materials used exclusively for public charity,” shall be exempt from taxation ; and, second, upon the terms of the act that regulates the assessment of property for local improvements, and describes the property to be assessed simply as “ all the real property situated in the district.”
We have no difficulty in disposing of the first ground relied upon. The rule established by a consensus of authorities — text writers and adjudged cases — is that the constitutional exemption refers alone to taxes for general purposes of revenue, and has no reference to special taxes or assessments for local improvements. If the case of Peay v. Little Rock, 32 Ark. 31, is an authority against it, that of Davis v. Gaines, 48 Ark. 370, is in support of it; and if there be any conflict between these cases, we approve the latter, as right upon principle and in line with the authorities. Cooley, Tax’n, (2d ed.), p. 207, and cases cited.
As to the second ground relied upon to sustain the claim of exemption, we find the authorities divided. The argument in favor of the exemption is that as the statute, in defining the property to be assessed, does not expressly mention public property or include it by any necessary implication, the presumption is that it was not intended to be assessed.
A leading case in support of the contention is Worcester County v. Worcester, 116 Mass. 193. The question there arose upon the liability of a court house to assessment by a sewer district. The court held that, although it was not exempt by the statute, which had reference to general taxes only, it was free from taxation ; because, being public property, acquired by public funds, managed by public authorities, constituting an instrumentality for the performance of public functions, it was not to be deemed a subject of taxation, either general or special, unless the intent of the legislature to render it so clearly appeared.
In the case of the City of Atlanta v. First Presbyterian Church, 12 L. R. A. 852, the question of the liability of a church to assessment was presented to the Supreme Court of Georgia. The statute provided that all real estate abutting on the street improved should be assessed, and the contention was that churches were expressly exempted from taxation, and that if the exemption applied to general taxes only, it implied an exemption from special taxes or assessments. The court held that the statutory exemption furnished no immunity from the special taxes, and that there was no implied exemption in favor of churches ; but in discussing the latter question Judge Bleckley said: “We can be morally certain that they (the terms of the act providing for the assessment) comprehend more than the legislature intended they should ; for they cover, by their letter, public as well as private property, and subject the whole alike to assessment, lien, levy and sale. That the public property of the United States, the State, county or the city was intended to be dealt with thus is so improbable that we can have no hesitation in holding that an implied exception as to all public property can and should be engrafted upon the act by construction.”
In the case of the County Com'rs, etc., v. Maryland Hospital, 62 Md. 127, the question arose upon the assessment of property held by the Board of Managers of the State Hospital, for street construction. The court said “that to bind the land of the State in any way that may divest it from the State, or destroy or impair one of its established agencies or means for carrying on its functions, the legislature must unequivocally give its sanction. * * * It is not material whether the State’s property may be taken from it by a tax in the nature of assessment for benefits or in some other way. The danger exists of taking that which belongs to and is essential to the State ; and it cannot be exposed to this danger without its direct sanction.”
A like conclusion has been reached by other courts. City of Toledo v. Board of Education, 26 N. E. Rep. (O.), 403 ; Edgerton v. Huntington School Twp. 126 Ind. 261; State v. Hartford, 3 Am. & Eng. Corp. Cases, 610.
Although a special tax or assessment is not usually embraced within the meaning of the general term “ tax,” the rule under which public property is presumed to be exempt from one justifies the presumption as to the other. In speaking of the latter, Judge Cooley says: “Some things are always presumptively exempted from the operation of general tax laws, because it is reasonable to suppose they were not within the intent of the legislature in' adopting them. Such is the case with property belonging to the State and its municipalities and which is held by them for governmental purposes. All such property is taxable, if the State shall see fit to tax it; but to levy a tax upon it would render necessary new* taxes to meet the demand of this tax, and thus the public would be taxing itself in order to raise money to pay over to itself, and no- one would be benefited but the officers employed whose compensation would go to increase the useless levy. It cannot be supposed that the legislature would ever purposely lay such a burden upon public property, and it is therefore a reasonable conclusion that, however general may be the enumeration of property for taxation, the property held by the State and by all its municipalities for governmental purposes, was intended to be excluded, and the law will be administered as excluding it in fact.” Cooley on Taxation (2d ed.), p. 172.
It is uniformly conceded that this rule is correct when applied to general taxation ; the reason sometimes, given for it is the improbability that the legislature would levy a tax upon that which results from a tax, and must be replaced by a tax, and which is used for governmental purposes ; another reason is found in the rule of statutory construction which presumes that the legislature never intends to affect or transfer any gov^ ernmental right or property, unless it expresses its intention to do so in explicit' terms or makes the inference irresistible. Whichever be the true reason of the rule, it is well settled; and we think it should apply alike to special, and to general, tax laws.
If it be argued that the reasoning upon which the rule is placed does not apply to special taxes for local improvements, because the levy would fall upon one public body for the benefit of a smaller one, or because the entire school district would pay the tax while the small improvement district must bear the loss from the exemption, the answer is that the same is the case with regard to general taxes. Exemption of the State House and other State institutions relieves every taxable subject in the State from the burden of taxation, but it deprives the particular county or school district in which they are situate of the entire county or school tax ; and so the exemption of county property from State taxes, benefits the county only, and deprives the entire State of revenue ; still, in all such cases, it is held that exemption is implied wherever liability is not expressed or necessarily implied. If the disparity of burden and benefit does not prevent the operation of the rule as to general taxes, we see no reason why it should as to special assessments. See Endlich on Int. Stat. secs. 161-3; Sedg. on Const. Stat. pp. 28, 337, 521; Suth. Stat. Const. p. 421; Galveston Wharf Co. v Galveston, 63 Tex. 14; Rochester v. Rush, 80 N. Y. 302 ; People v. Brooklyn Assessors, 111 N. Y. 505 ; Jones v. Tatham, 20 Penn. State, 398; Directors of Poor v. School Directors, 42 Penn. State, 21; 2 Dill Mun. Corp. (4th ed.), sec. 773 ; People v. Doe, 36 Cal. 220 ; West Hartford v. Board, 44 Conn. 360.
It is argued that, upon the authorities, exemptions of public property from local assessments is denied, and cases to sustain the argument are to be found, decided by high and learned courts. See St. Louis Public School v. St. Loius, 26 Mo. 468 ; Sioux City v. School District, 55 Ia. 150 ; McLean County v. Bloomington, 106 Ill. 209; Adams County v. Quincy, 130 Ill. 566.
But in our opinion they are based upon error. The reason upon which they rest, as stated by the Supreme Court of Iowa, is that ‘ ‘ taxation is the rule and exemption the exception,” and that statutes under which exceptions are claimed must be strictly construed. To sustain this, Cooley is cited. The same reason is given by the Supreme Court of Illinois, and Dillon is cited. Both courts seem to have overlooked the fact that the authors in the citations made were considering the subject with reference to private property, and had stated the rule with reference to public property to be that exemptions would be implied unless otherwise expressed. Cooley on Tax’n (2d ed.), p. 172; 2 Dill. Mun. Corp. (4th ed.), sec. 743.
It is argued that even if public property is exempt, the exemption does not extend to the property of public school districts, inasmuch as they are not, strictly speaking, municipal corporations, and education is not a governmental function. The Constitution provides that the State shall ever maintain free public schools, and in performing this duty it exercises a' function strictly public and governmental. It created school districts and imposed upon them in part this duty, and in order to discharge it they own school houses. They have no other duty than to perform for the State this public function, and only that they may do it is the house held. The State may abolish them, take the property, and undertake directly or through other agencies this public function. The means of controlling the property would thereby be changed, but its use would be unchanged ; and there is nothing in the policy of the law to exempt the property while held and controlled by the State, which would deny the exemption while held by the State’s agent and used in the performance of its duties. Green v. U. S. 9 Wall. 655, and authorities above cited.
There is nothing in the act to require the inference that it was intended to embrace public property held by the Government, the State or any of the State’s subordinate agencies and used for public purposes. It could not include the first, and this the legislature no doubt knew; but there is as much reason to suppose that it intended to include the property of the Government as that of the State. An exception must be implied as to the property of the Government ; and as no appropriate remedy is provided for- collecting sums due from the State or any of its agencies, there is no inference that the legislature intended to include such property, and the presumption is that it was to be exempted.
Affirmed.