Fenton v. Board of County Commissioners

119 P. 41, 20 Idaho 392, 1911 Ida. LEXIS 119

• Court: Idaho Supreme Court
• Decided: October 30, 1911
• Status: Published

Opinions

SULLIVAN, J.

This is an appeal from an order of the board of county commissioners of Ada county, whereby they levied a tax of three mills on the dollar on all taxable property in Ada county for general school purposes. An appeal was taken from said order of the board to the district court, and after a trial before that court the order of the board was set aside, and judgment against the commissioners entered and the cause was remanded to the board with directions to proceed in accordance with law, from which judgment the board of county commissioners appeal. Upon perfecting the appeal to the district court, the board appeared and moved to diamiRR the appeal on the ground that the order in question was not an appealable order and that if the appellant had any remedy it was by mcmdamus.

The question of whether an appeal lies from such an order of the board is presented on this appeal. It is provided by sec. 1950 of the Rev. Codes that “An appeal may be taken from any act, order or proceeding of the board by any person aggrieved thereby or by any taxpayer of the county when any demand is allowed against the county, or when he deems any such act, order or proceeding, illegal or prejudicial to the public interests.” In the Village of Ilo v. Ramey, 18 Ida. 642, 112 Pac. 126, in construing said section 1950, this court said: ! ‘ That section of the statute, however, authorizes an appeal to be taken by a taxpayer in the county from any order which he may deem prejudicial to the public interest.” Said order affects every taxpayer in the county, inasmuch as it fixes a rate of taxation upon all of the property in the county, and is therefore an appealable order under the provisions of said section.

In the case of Feltham v. Board of County Commissioners, 10 Ida. 182, 77 Pac. 332, this court held that the statute authorizing appeals from the order of the board of county commissioners does not authorize an appeal from an order of the board of equalization, and that a board of equalization is a constitutional body exercising powers and duties separate and distinct from those exercised by the board of commissioners, and it. therefore has no application to this case, as this is an appeal from an order of the board of county commissioners and not from the board of equalization.

The second point raised on this appeal is as to whether the court erred in admitting in evidence the stipulation of facts entered into by counsel. Said stipulation of facts contains much matter that is irrelevant and immaterial in this case, but we do not think it was reversible error to admit it.

It is next contended by the appellants that mandamus is the proper remedy and not appeal. "We have above held that an appeal would lie from said order of the board, under the provisions of said sec. 1950. An appeal in some cases may not be a plain, speedy or adequate remedy in the due course of law although an appeal might be given by statute, and in such cases a resort may be had to mandamus. However, where an appeal is provided by law, if a party concludes that an appeal will be as effective for his purpose and secure to him an adequate remedy, he may proceed by appeal; and if the plaintiff in this case so concluded, as he evidently did, he certainly had a right to that remedy and could thereby obtain such relief as an appeal affords, even if he is not able to procure thereby all the relief to which he is, in fact, entitled. There is nothing in the contention of appellants that plaintiff’s only remedy was by mandamus.

The decision of this case involves the proper construction of see. 65 of an act of the legislature providing a code of laws on education for the public school system of Idaho, etc., Sess. Laws 1911, p. 483, which section is as follows:

“For the purpose of establishing and maintaining public schools in the several -counties of the state, the board of county commissioners of each county shall, at the time of levying the taxes for state and county purposes, levy a tax of not .less than five (5) mills nor more than ten (10) mills on each dollar of taxable property, in their respective counties, for school purposes. Said taxes must be assessed and collected in each county as other taxes for state and county purposes. For the further support of the public schools, there shall be set apart by the county treasurer of each county and placed in the county school fund all moneys arising from fines, forfeitures or breaches of any of the public penal laws of the state.”

Is that section constitutional and mandatory?

It is contended by counsel that the commissioners had the discretion to investigate and make such a levy of taxes as would supply the necessities of the school district (provided they had the authority to make any levy whatever, which is also denied by counsel); and they also contend that when the board exercised that discretion and made the levy and ascertained the amount necessary, that their action therein became final, and cannot be inquired into by. the courts, and in support of that contention is cited see. 2 of art. 7 of the constitution, which reads in part as follows: ‘ ‘ The legislature shall provide such revenue as may be needful by levying a tax by valuation,” etc. Counsel contend that said section is a restriction on the power of the legislature, and that the legislature cannot levy or authorize the levy of any tax in an amount in excess of what is “needful” or necessary for the purpose for which it is levied, and an attempt to authorize an excessive levy is contrary to said provision of the constitution and void. The part of said section above quoted commands the legislature to provide such revenue as may be needful by “levying a tax by valuation,” etc., and applies particularly to revenue for state purposes and contemplates that only “needful” revenue shall be collected, and that means sufficient revenue for the purpose for which it was intended, and the legislature must decide that question so far as state taxes are concerned. That section must be construed with other sections of the constitution.

•Sec. 6 of art. 7 of the constitution provides as follows: “The legislature shall not impose taxes for the purpose of any county, city, town, or other municipal corporation, but may by law invest in the corporate authorities thereof, respectively, the power to assess and collect taxes for all purposes of such corporation.” That section is an inhibition on the legislature from imposing taxes for the purpose of any county, city, town or other municipal corporation, and gives (if necessary to do so) the legislature power to vest in the corporate authorities of such municipalities the power to assess and collect taxes for all purposes of such corporations. That section emphasizes the fact that the provisions of said section 2 of art. 7 authorize the legislature to levy taxes for state purposes and not for county or municipal purposes. It is contended by counsel under the provisions of said see. 6 of art. 7, that the legislature has no power to authorize or command the county commissioners to make a tax levy of any kind for the benefit of the school districts of the respective counties, for the reason that such districts are municipal corporations and have the right to levy all needful taxes without any interference from the board of county commissioners or the legislature. We are unable to agree with that contention. We do not think that a school district is a municipal corporation within the meaning of that term as used in said section 6.

Dillon, in his work on Municipal Corporations, see. 24, classifies school districts as quasi corporations with most limited powers; and it is said in 28 Cyc. 131, referring to school districts, that “Such bodies, although not ‘municipal corporations’ nor ‘municipalities’ in the proper sense, must be construed as falling within such terms in a constitution, statute or other instrument, if such appears to be the intention. ’ ’

■ We do not think it was the intention of the framers of the constitution or of the legislature in enacting laws in regard to school districts to treat them as municipal corporations. An act, approved March 11,1893 (Sess. Laws, p. 198), which is an act entitled, “An act to establish and maintain a system of free schools,” declares regularly organized school districts to be bodies corporate. See. 34 of said act is as follows:

“Each regularly organized school district in this state is hereby declared to be a body corporate by the name and style of school district number - in the county of -, state of Idaho; and in that name the trustees may sue and be sued, hold and convey property for the use and benefit of such district and make contracts the same as municipal corporations in this state. ’ ’

The legislature then merely declares school districts to be bodies “corporate” and not “municipal corporations,” and the language of said section accentuates the idea that the legislature did not consider them municipal corporations, as it'is further provided in said section-that such districts may “make contracts the same as municipal corporations.” Had the legislature considered, them municipal corporations, it would not have provided that such districts could make contracts the same as municipal corporations. The framers of the constitution did not recognize school districts as “municipal corporations.” Art. 12 of the constitution of this state is devoted to the subject of municipal corporations, and it nowhere mentions school districts, and we do not think it includes them. While school districts are a part of the county organization, they are subdivisions created by law for convenience and efficiency in administration, and the constitution provides for a county superintendent of public instruction, (see art. 18, sec. 6), whose duties must be prescribed by law, and under the law such officer is placed in general supervision of the district schools.

In McCabe v. Carpenter, 102 Cal. 469, 36 PaC. 836, the court said:

“Public and municipal corporations are both mentioned in the section quoted from the constitution. But I think school districts have generally been considered a part of the county organization, and so they are regarded in the statute under consideration.”

In the constitution of California, school districts are not considered municipal corporations, but a part of the county organization. In the states of California, Colorado, South Dakota, Nebraska, Montana and Washington, they have constitutional provisions similar to our own, and in those states, as we understand their statutes, the county commissioners or county supervisors are authorized to levy taxes within minimum and maximum limits, similar to this state, and so far as has been called to our attention every state having constitutional provisions like our own, not only permits district levies but authorizes a levy by the county board for the use and benefit of the school districts.

The constitution of Illinois provides that the corporate authorities of counties, townships, school districts, cities, towns and villages may be vested with power to assess and collect taxes for corporate purposes. It will be noted that school districts are there mentioned, and the legislature is there authorized to vest in such districts the power to assess and. collect taxes for corporate purposes. This, however,, has not prevented the legislature from authorizing a county levy (Rev. Stats. 1908, p. 1962), and also- a district levy (p. 1944). The legislature of this state no doubt has the authority to authorize school districts to assess and collect taxes for district purposes, but as it has not delegated that entire power to such districts, it no doubt concluded that the provisions of sec. 1, art. 7, of the constitution could be more effectively carried out by requiring the boards of commissioners to levy a tax for that purpose between a minimum and maximum rate as prescribed by law, which we think it had the power to do.

Prior to statehood the legislature had absolute control of the common schools. It established a system of public schools which it no doubt believed to be best suited to the needs of our people, there being no constitutional prohibition against such action. In 1866 the territorial legislature passed an act entitled “An act to establish a common school system, and to provide for the maintenance and supervision of public schools.” (3 Terr. Sess. Laws, 122.) The second section of that act provided as follows: “For the purpose of establishing public schools in the various counties of this territory, it shall be the duty of the county commissioners of each county at the time of levying the taxes for county and territorial purposes to levy taxes of not less than one-half a mill nor more than two mills,” and.that provision remained in force with slight changes until the adoption of our constitution.

The framers of the constitution recognized the great importance of education, and they proposed and the people adopted sec. 1 of art. 9, which is as follows:

“The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.”

Thus we find that since 1866 down to -the present time the words “establish and maintain” have been an integral part of our common school system. From our statutes and constitution, there can be no doubt as to the purpose of the people regarding the common schools. The great object sought was the creation of a public school system that would be efficient and enduring; and while that duty was imposed on the legislature by the constitution, a large discretion was given to it in which to “establish and maintain a general, uniform, and thorough system of public, free common schools,” and the history of the public schools of this state shows that the legislature has efficiently and wisely carried out said provision of the constitution in the enactment of general laws for that purpose. Schools cannot be established or maintained without revenue, and there is no inhibition in the constitution on the legislature from delegating the authority to raise revenue for that purpose to proper local officers. The legislative branch of the government has the exclusive power of taxation, except as limited by the constitution, and has authority under the constitution to delegate that power within the provisions of the constitution to municipalities or their officers. (See 2 Dillon, Municipal Corporations, 3d ed., sec. 740.)

As stated in Robinson v. Schenck, 102 Ind. 307, 1 N. E. 698:

“It cannot be doubted that the legislature may delegate to local officers the power to make rules for the government of local schools and to levy taxes for their support; and, if this be true, it necessarily results that it is a valid exercise of power to enact a statute for that purpose. If a valid statute is enacted, committing to the local officers the power to' govern schools and raise revenue for their maintenance, the legislature does provide for a system of common schools ‘by law,’ and this is what the constitution requires.”

If, under said provisions of the constitution, the legislature has by general law made provisions for the government and support of the common schools by providing suitable machinery and committing the details of its operation to local officers, they then have complied with the provisions of said sec. 1, of art. 9 of the constitution. The legislature might delegate the exclusive authority to the board of trustees of each district to levy the taxes for school purposes within its district, but the legislature has not done so. However, each district may levy a special tax, and the board of commissioners is authorized to levy not less than five mills and not more than ten mills to be apportioned among the districts as provided by law.

It was well known that there were school districts in the state containing a small amount of taxable property, and that it would be impossible without classification to raise a sufficient amount of money by taxation on such property to maintain the school in such district for the time required by law, and the method adopted by the legislature in requiring the several boards of county commissioners to levy a tax of not less than five mills nor more than ten mills for public school purposes and to divide it among the districts, as provided by law, would assist the weaker districts, and thus enable them to give the children in such districts the required amount of schooling per year.

Article 18 of the constitution is in regard to county organization and government, and sec. 11 of that article provides that county, township, and precinct officers shall perform such duties as shall be prescribed by law.

This court held in Fremont County v. Brandon, 6 Ida. 482, 56 Pac. 264, that the powers of the board of county commissioners were statutory and limited, and that such boards can only exercise those powers granted to them by the statute. In Conger v. Commissioners of Latah Co., 5 Ida. 347, 48 Pac. 1064, this court held that the county commissioners have only such jurisdiction and power as is conferred on them by law. The only power that such boards have conferred on them by the laws of this state in regard to levying taxes for common school purposes is contained in said section 65, and the only power given them there is to levy a tax of not less than five mills nor more than ten mills on the dollar. They have no statutory power to levy a school tax of less than five mills, and if they have no statutory power to do so, then they have no authority whatever to do so. As the legislature has granted the board power to levy a school tax of not less than five mills and not more than ten, that is the limit of the board’s power. The legislature has enacted a general and uniform law for the purpose of establishing and maintaining the public schools of the state, and has provided by law that the boards of county commissioners of the several counties should perform certain duties in connection therewith, and said general law provides that in order to maintain the public schools of the state, the board of county commissioners of each county shall levy not less than five mills nor more than ten mills each year for school purposes upon the taxable property of the county, and that is the only power granted to such board in that matter. It is clear that the legislature is not prohibited, either expressly or impliedly, by any provision of the constitution from requiring the several boards of county commissioners to perform such duty, and that it has full power and authority to fix a minimum and maximum limit by which the several boards shall be governed in levying such taxes; and if any district does not receive sufficient money therefrom, then it is left to the district to provide a special tax to cover any deficiency.

The principal difficulty seems to be that a five mill levy will raise more money than many of the districts will need. If that be true, it is unfortunate, but it is not for this court to attempt to deprive the legislature of any power or authority given it by the people. The difficulty in this matter arises out of assessing the property of the state at a much higher value than it has heretofore been assessed without changing the law in regard to the amount of the levy to be made by the boards of county commissioners, and it no doubt has been unfortunate for the people to have the assessed valuation so increased and the fixed levies not changed-to conform therewith; but this court must take the law as it finds it and interpret it according to the clear intention of the lawmaking power. No doubt if the legislature had known that the assessed valuation was going to be so much increased, they would have changed the fixed levies at the last session, but as they had no information of any such increase, no change in the fixed levies was made, and this court has no power to change such levies.

The supreme court of California in discussing the power given to the board of trustees to levy a school tax on lands outside of the city, in Visalia Savings Bank v. City of Visalia, 153 Cal. 206, 94 Pac. 888, said: tional principles; but this power given the board of trustees does not violate any existing inhibition of the constitution which has been pointed out to us. In our opinion, therefore, this contested power is not unconstitutional, but is valid and effective.” (See, also, Board of Education v. Board of Trustees, 129 Cal. 599, 62 PaC. 173.)

“The fact that the board of trustees of the city is given power, at the -request of the board of education, to levy a tax on lands outside of the city, may afford a plausible excuse for indulgence in some general chatty talk about eonstitu-

It was held by the supreme court of Kentucky in Macklin v. Trustees of Common School District No. 9, 88 Ky. 592, 11 S. W. 657, that the legislature had the constitutional power to authorize the trustees to levy a tax not exceeding a given rate, and in the course of the opinion the court said:

“It is urged, however, that the legislature had no constitutional power to do so. It is true the legislature must always prescribe the rule under which the taxation is imposed. It must originate the authority. It cannot refer this power to another body, but, having prescribed the rule, it need not fix the exact sum to be raised, or the particulars of the expenditure. It would often be impossible for it to do so wisely, owing to the infinite variety of local needs and interests. Here it authorized the taxation. It provided that it should not exceed a certain sum. It prescribed the rule. It made the law, while the trustees merely give effect to it. One is legislation and the other administration. Thus the legislature may unquestionably authorize the council of a city to order the assessment and collection of a tax not exceeding a certain sum’for a certain purpose.”

See, also, Robinson v. Schenck, 102 Ind. 307, 1 N. E. 698, which is a leading case upon some of the questions here involved.

It is a familiar and fundamental principle of construction applicable to state constitutions that the legislature of the state has plenary power in regard to all matters of legislation that belongs to or resides in the people, except when restricted by express provisions or necessary implications in the constitution of the state and of the United States.

'It is stated by Judge Cooley in his work on Constitutional Limitations, 7th ed., p. 126, as follows:

“In creating a legislative department and conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the constitution of the United States.”

A state constitution is not a grant of power to the legislature, but a limitation upon powers already plenary.

In People v. Draper, 15 N. Y. 532, Chief Justice Denio, speaking for the court, said: “The people in framing the constitution committed to the legislature the whole law-making power of the state which they did not expressly or impliedly withhold. Plenary power in the legislature for all purposes of civil government is the rule. A prohibition to exercise a particular power is an exception.”

Council for appellant cite certain decisions to the effect that taxes for municipal purposes should be left to the control of municipal corporations. The rule there laid down is no doubt correct under the constitutions of the states from whence such decisions come, and would be correct under the provisions of sec. 6 of art. 7 of the constitution above quoted, which prohibits the legislature from imposing taxes for the purpose of any county, city, town or other municipal corporation. However,, under our constitution and law, a school district is not a municipal corporation, and the constitution makes it the duty of the legislature to establish and maintain free public schools, and in doing so it may require the boards of county commissioners of the several counties to levy and collect a tax therefor. We find no inhibition in our constitution against such legislation, and we find nothing in the constitution prohibiting the legislature from fixing a maximum and minimum amount between which such tax may be levied. The legislature had full power and authority to enact said sec. 65, and it is not repugnant to any provision of the constitution, and is mandatory. Where boards of county commissioners have not complied with the provisions of said section, they ought to comply therewith at once or as soon as possible.

The judgment of the district court must therefore be affirmed, and it is so ordered.

Stewart, C. J., concurs.