City of Lafayette v. Jenners

10 Ind. 70

Opinions

Perkins, J.

Application for an injunction. Injunction granted. Appeal to this Court.

The facts of the case are as follows: In 1855, the legislature passed an act entitled “ An act to authorize the establishment of free public schools in the incorporated cities and towns of the state of Indiana.” The first section of the act reads thus:

“ Be it enacted, &c. — That the several incorporated cities and towns in this state be and they are hereby authorized and empowered to establish and support public schools within their respective corporate limits, and by an ordinance of such corporation to levy and collect such taxes as may be necessary; from time to time, for the support thereof,"

Footnotes

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(1) .

Under this section, the city of Lafayette levied a tax for the'support of public schools within the corporation, and was proceeding to collect it. Tenners filed his complaint in the Circuit Court, asking that the city be enjoined from collecting the tax so assessed against him. The injunction, as we have seen, was granted. The sole question presented in the case is, whether the section of the statute above quoted is constitutional; and we can scarcely regard it-' as an open one.

The act of 1852, 1 R. S. p. 444, § 32, and p. 454, § 130, authorized incorporated cities and towns to levy taxes for the support of public schools, after the public funds had been exhausted; and this Court on all occasions, has held that portion of the act unconstitutional. But what is the difference between it and the section of the act of 1855 which we have quoted? Simply this, and nothing more:-the act of 1852 authorized incorporated cities and towns to levy taxes for the support of their schools, after the public funds should have been exhausted; the act of 1855 authorizes incorporated cities and towns “ to levy and collect such taxes as may be necessary, from time to time, for the support” of public schools within their corporate limits. The distinction between the acts is without a difference.

If the legislature cannot, under the constitution, confer upon cities and towns the power to levy taxes to continue the free public schools of the state, how can it confer upon them power to levy taxes to establish and support free public schools? What objection exists to the exercise of the first, that does not exist to the exercise of the second act of power? And what was the objection assigned against the first? It was not that it was conferring upon cities and towns power that they were not adapted to exercise; but that it was attempting to confer upon them power forbidden to be so conferred by the constitution. It was at tempting to confer upon them power touching a subject as to which the constitution required all power to be exercised by the legislature alone — viz., the subject of furnishing tuition in public schools to the children of the state.

In Adamson v. The Auditor, &c., 9 Ind. R. 174, this Court, in speaking of the law of 1852, said:

“ According to the decision in Greencastle, &c., v. Black, 5 Ind. R. 557, the provision in that law authorizing township trustees to assess taxes for paying teachers of common schools, is unconstitutional; because the power of voting taxes for that purpose is vested by the constitution in the legislature alone. As to such taxes, the law must be uniform throughout the state. Quick v. Whitewater Township, 7 Ind. R. 570.—Quick v. Springfield Township, id. 636.”

The new constitution does not contemplate two systems of free public schools in the state — one under the control of the state, and supported by her trust funds and taxes, and another under the control of the various municipal corporations of the state — the cities, towns, townships, counties, school districts — and supported by taxation by them. This would be remitting us back, practically, to precisely the condition we were in under the old constitution and laws, where the state supported a system of public schools, and authorized the counties, &c., severally to raise additional taxes for schools, if they pleased. The consequence was, the legislature shirked the duty of keeping up an efficient system — contented itself with authorizing the municipal corporations to provide schools at their option —and hence we had, on this subject, no uniform rate of taxation — no uniformity of system — no equality of educational privilege — among the children of the state. To remedy this evil — to give us this uniformity and equality — to secure a united and vigorous, instead of a divided and thus weakened, common school system and interest — to place upon the legislature a compulsion to give us these advantages by its own action, instead of hazarding them with the voluntary action of municipal corporations — the new constitution provides that it shall be the duty of the gene ral assembly to provide by law for a (one) “ general and uniform system of common schools, wherein tuition shall be without charge, and equally open to all.” The system must operate equally in city and country, or it would not be uniform. The citizens of the city must be taxed to support it equally with those of the country. Then-children must have the right to attend the schools under the system in the city. And if another set of public schools can be maintained in the corporation by taxation, either concurrently with, or in the vacation of, the state schools, then taxation for the support of public schools is not uniform and equal; for such taxes are levied, in effect, by the state, as the city can only levy them by authority delegated to her by the state; and educational privilege is not made equal, to the children of the state — in short, we will not have, as required by the constitution, one uniform system of common or public schools (for the terms in the statutes and constitution are synonymous), supported by equal taxation, and made equally open to all.

R. C. Gregory, H. W. Chase and J. A. Wilstach, for the appellants (2). W. M. Tenners, for himself.

We think the injunction was rightly granted.

It may be observed that the constitutional restraint applies only to moneys raised for tuition. Municipal corporations may be authorized to raise money by taxation to build school-houses, &c.; but, perhaps, the assessment should be for the specific object. Money cannot be raised to pay the salary of teachers.

Another point was made, but it is immaterial in the case. It was, whether the city of Lafayette had properly accepted the charter of 1857. A charter, where acceptance may be necessary, may be inferred to have been accepted. If the citizens have acted under the new charter, it might be regarded as an acceptance relating back to the commencement of action under it. See Redf. on Railw. 10. •

Per Curiam. — The judgment is affirmed with costs.

The same Case.

Monday, April 6.

(1) Acts of 1855, p. 184.