1969-1970 County Tax Levy by Buffalo County Bd. of Equalization, In re

• Decision Date: 11 June 1971
• Docket Number: No. 37818,37818
• Citation: 187 Neb. 119,188 N.W.2d 442
• Parties: In the Matter of the 1969--1970 COUNTY TAX LEVY BY the BUFFALO COUNTY BOARD OF EQUALIZXATION. Evelyn U. WERTH et al., Appellees, v. BUFFALO COUNTY BOARD OF EQUALIZATION, Appellant.
• Court: Nebraska Supreme Court

Page 442

188 N.W.2d 442

187 Neb. 119

In the Matter of the 1969--1970 COUNTY TAX LEVY BY the BUFFALO COUNTY BOARD OF EQUALIZXATION Evelyn U. WERTH et al., Appellees, v. BUFFALO COUNTY BOARD OF EQUALIZATION, Appellant.

No. 37818.

Supreme Court of Nebraska.

June 11, 1971.

Syllabus by the Court

1. The plaintiff taxpayer, appealing under the provisions of section 77--1606, R.R.S.1943, has the burden of proving that the levy complained of is in fact excessive and illegal.

2. The powers of the county board of equalization, under the provisions of the nonresident high school tuition act, are ministerial only and it has no standing to question the discretionary legislative powers of the school district.

3. The true test in setting nonresident high school tuition rates is that laid down in Mann v. Wayne County Board of Equalization, 186 Neb. 752, 186 N.W.2d 729.

4. The county board of equalization must, in determining the mill levy under the provisions of the nonresident high school tuition act, deduct from the total requirements of the fund any balance which remains after all claims for the preceding fiscal year have been paid.

5. Unless the Legislature otherwise provides, funds properly expended by a receiving high school district from state and federal aid are includable in the computation of per pupil costs under the provisions of section 79--4,102, R.S.Supp.1969.

6. In an action which challenges the legality in whole or in part of the levy made under the provisions of the nonresident high school tuition act, the receiving school districts to which the tuition claims will be paid from the fund are necessary parties.

Andrew J. McMullen, County Atty., Kearney, for appellant.

Wilson, Barlow & Watson, Kile W. Johnson, Lincoln, for appellees.

Nye, Wolf & Hove, Kearney, for amicus curiae.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

CLINTON, Justice.

This is an appeal by the Buffalo County Board of Equalization from a judgment of the district court for Buffalo County in which the court declared that a portion of the nonresident high school tuition levy as set by the Board for the fiscal year commencing July 1, 1969, and ending June 30, 1970, was excessive and illegal and directing that refunds be made. We reverse the judgment of the trial court and direct dismissal of the petition of plaintiff-appellee.

The plaintiff, a taxpayer residing in a school district which was subject to the levy, had appealed under the provisions of sections 77--1601 and 77--1606 to 77--1610, R.R.S.1943, from the action of the Board and asked, among other things, that section 79--4,102, R.S.Supp., 1969, be declared unconstitutional and void. The trial court found the statute constitutional. The plaintiff did not cross-appeal but does here argue unconstitutionality. This point has been decided adversely to the plaintiff in Mann v. Wayne County Board of Equalization, 186 Neb. 752, 186 N.W.2d 729. A reading of that case will be useful in understanding the disposition made on this appeal of other questions raised.

The Board makes nine assignments of error. Two of these it does not argue and these we disregard. The remaining assignments may be condensed as follows: The court erred (1) in receiving any evidence under the plaintiff's petition because the affected receiving high school districts were necessary parties defendant and had not been joined; (2) in holding that the Board had power to change the amount determined to be the proper per pupil cost for nonresident students by the receiving high school districts; and (3) in holding that the levy made by the Board was excessive and contrary to law.

The plaintiff alleged: (1) The levy was made in reliance upon erroneous and unlawful certifications to the Board by the county superintendent of the number of applications received by the superintendent for nonresident high school privileges under section 79--4,105, R.R.S.1943; that 225 applications had been certified but that 225 applications had not in fact been received by the superintendent prior to July 1, 1969; and that if any applications were submitted after that date they were null and void. (2) A balance on hand of $78,251.90 in the nonresident high school tuition fund on August 29, 1969, had not been deducted in determining the amount required to be raised by the levy and that the failure of the Board to make the reduction was contrary to the provision of section 79--4,104, R.R.S.1943, as follows: 'If a balance remains in the fund after all claims have been paid, it shall not revert to the county general fund but shall remain in the nonresident high school fund and be deducted from the amount levied for the succeeding year.' (3) The tuition rates submitted by the school superintendent of the receiving high school districts are in excess of the actual per pupil cost and in violation of the limitations claimed to be imposed by section 79--4,102, R.S.Supp., 1969, which provides in part: 'The high school tuition rate for nonresident pupils shall be determined annually by the receiving district on a uniform basis for all pupils but such rate shall in no event be less than the average per pupil cost for the preceding school year determined as provided in subsection (3) of section 79--486.'

The trial court incorporated in its decree detailed computations of per pupil cost for each of the seven receiving high school districts and computed a total money requirement for the nonresident high school tuition fund for the year 1969--70 in the amount of $136,372.44. From this the court subtracted the $78,251.90 balance in the fund as of August 29, 1969, and computed the sum of $58,128.54 as the amount needed to be raised by the levy. In determining per pupil cost, it first divided the estimated income from nonresident high school tuition as shown by the 1969--70 budgets of each of the high school districts by $1,000 (presumably the certified tuition rate), and thus arrived at the number of pupils to be received by each district. However, the record in this case is completely devoid of any evidence to establish: (1) The tuition rate certified by each district; (2) the number of nonresident pupils anticipated by each district; and (c) the total number of pupils certified by the county superintendent to the Board.

In the computation of per pupil cost under section 79--486, R.S.Supp., 1969, the court made adjustments eliminating from the costs of various high school districts the amounts received by each as State Aid and Federal Title I funds. It made this adjustment by using the anticipated amount of such aid as shown in the budgets of each of the school districts, then allocating a portion of this to high school education, and then subtracting this allocated figure from high school education costs. The record is devoid of any basis for this allocation except the relationship of the elementary and secondary education costs of each school as shown in the annual financial reports of the districts for the preceding year as they are on file in the offices of the Department of Education. The plaintiff argues that expenditures of the high school districts paid by state aid and federal funds are not part of the costs of the districts because the plaintiff and others similarly situated 'pay money to the Federal Government through income taxes. The same taxpayers contribute to the State General Fund by paying state sales, use, and income taxes. When distributions to the individual high school districts are thereafter made by the United States Government, and by the State of Nebraska from the General Fund, the same taxpayers are entitled to receive the benefits of their taxing burden.'

A clear understanding of the statutory plan and purposes of the nonresident high school education statutes contained in sections 79--494 to 79--4,106, R.R.S1943, including section 79--4,102, R.S.Supp., 1969, which we will hereafter refer to as the act, is necessary to a determination of some of the issues presented.

Section 79--494, R.R.S.1943, declares that, subject to the conditions of the act, its purpose is to secure 4 years of high school education for those children whose parents or guardians reside in a high school district which does not have a high school.

Section 79--4,100, R.R.S.1943, is important. It grants to any high school district the right to refuse admission to any and all nonresident students if the tuition fixed by section 79--4,102, R.S.Supp.1969, is non-compensatory, or if the pupils are from districts not served at the time of the enactment of the statute or previously; 'Provided, that no public high school district may refuse admission to nonresident pupils effective prior to the beginning of the 1963--1964 school year, and effective then, or at the beginning of any school year thereafter, only if notice of its intention to refuse admission to nonresident pupils has been given * * * by October 1 of the preceding year * * * by publication in a legal newspaper * * *; and provided further, that any school district may by public notification prior to October 1 require that the parents or guardians of all nonresident pupils must make application on or before April 1 for admission to the following school term.' Previous to the 1963 amendment this section of the statute simply read: 'Any public high school district may refuse admission to any or all nonresident pupils.'

The effect of the 1963 amendment is that the receiving school district must, if it has not brought itself within the proviso by giving the requisite notice, accept all qualified students who make application prior to the beginning of the school year. There is nothing in the record to show whether or not the receiving districts gave the notices mentioned. It therefore may be that they are in fact required to accept students making application after July 1 and before the beginning of the school year. A student residing with his...