Sawyer v. Gilmore

• Decision Date: 06 June 1912
• Parties: SAWYER v. GILMORE, STATE TREASURER.
• Court: Maine Supreme Court

83 A. 673

109 Me. 169

SAWYER

v. GILMORE, STATE TREASURER.

Supreme Judicial Court of Maine.

June 6, 1912.

Report from Supreme Judicial Court, Penobscot County, in Equity.

Bill by Herbert J. Sawyer against Pascal P. Gilmore, State Treasurer. On report. Bill dismissed.

Bill in equity brought by Herbert J. Sawyer of Mattaniscontis, an unorganized township in the county of Penobscot, to enjoin the defendant and his successors in office from collecting a tax assessed under the provisions of chapter 177 of the Public Laws of 1909, entitled "An act relating to the common school fund and the means of providing for and distributing the same." Bill dated July 27, 1910. An answer was filed by the defendant. By agreement the case was reported to the law court for determination.

Argued before WHITEHOUSE, C. J., and SPEAR, CORNISH, KING, BIRD, HALEY, and HANSON, JJ.

Louis C. Stearns, Taher D. Bailey, and Louis C. Stearns, Jr., all of Bangor, for plaintiff.

Warren C. Philbrook, Atty. Gen., and William R. Pattengall, Atty. Gen., for defendant.

CORNISH, J. This bill in equity is brought to enjoin the Treasurer of State and his successors in office from collecting a tax assessed under the provisions of chapter 177 of the Public Laws of 1909, entitled "An act relating to the common school fund and the means of providing for and distributing the same." The plaintiff is a resident of Mattaniscontis, an unorganized township in the county of Penobscot. He is the owner of 12 lots of land in the township, and has one child of school age. The entire state tax assessed against these lots at the rate of 5 mills amounted to $21.51, three-tenths of which, or $6.45, was created by the act in question. The amount involved in this suit is not large, but the consequences are of vast importance.

The case comes up on report, and by stipulation the only question raised and to be considered is the constitutionality of the chapter above referred to under the state and federal Constitutions.

Chapter 177 of the Public Laws of 1909, the statute in question, reads as follows.

"Section 1. A tax of one and a half mills on a dollar shall annually be assessed upon all of the property in the state according to the valuation thereof and shall be known as the tax for the support of common schools.

"Sec. 2. This tax shall be assessed and collected in the same manner as other state taxes and shall be paid into the state treasury and designated as the common school fund.

"Sec. 3. One-third of this fund shall be distributed by the Treasurer of State on the first day of January, annually, to the several cities, towns and plantations according to the number of scholars therein, as the same shall appear from the official returns made to the state superintendent of public schools for the preceding year, and the remaining two-thirds of said fund shall be distributed by the Treasurer of State on the first day of January, annually, to the several cities, towns and plantations, according to the valuation thereof as the same shall be fixed by the state assessors for the preceding year.

"Sec. 4. All of the said fund not distributed or expended during the financial year shall at its close be added to the permanent school fund.

"Sec. 5. All moneys provided by towns or apportioned by the state for the support of common schools shall be expended for the maintenance of common schools established and controlled by the towns by which said moneys are provided, or to which said moneys are apportioned.

"Sec. 6. Sums received by any city, town or plantation from the distribution provided by section three shall be deemed to be raised by such city, town or plantation within the meaning of Revised Statutes, chapter fifteen, section thirteen, as amended.

"Sec. 7. The passage of this act shall in no wise affect the provisions of sections one hundred and twenty-four, one hundred and twenty-five, one hundred and twenty-six and one hundred and twenty-seven of chapter fifteen of the Revised Statutes, or of section two of chapter one hundred and eleven of the Public Laws of 1907."

It is contended that this statute violates section 8 of article 9 of the state Constitution, which reads: "All taxes upon real or personal estate assessed by authority of this state shall be apportioned and assessed equally according to the just value thereof"; article 8 providing that "the Legislature are authorized and it shall be their duty to require the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools," and the fourteenth amendment of the federal Constitution, declaring that "no state shall deny to any person within its jurisdiction the equal protection of the laws."

Before entering upon a consideration of the constitutional questions thus raised, it may be useful to take a brief survey of the laws in force at the time this statute was enacted pertaining to the raising and distribution of money for the common schools of the state.

These schools have received their support from two distinct sources, state aid and direct municipal taxation, the former passing through the state treasury to the treasuries of the several municipalities and the latter through the municipal treasuries alone.

State Aid.

The state aid, since 1872, when the first so-called mill tax was created, has itself been derived from three sources.

First. From the income of the "Permanent School Fund," so called, a fund created by the sale of wild lands appropriated by the state in former years for the support of schools, amounting at the present time to about one half a million dollars, and on this principal the state pays interest at the rate of 6 per cent. R. S. c. 15, § 122.

Second. From one-half of the state tax on savings banks and trust companies. R. S. c. 15, § 122.

Third. From the school mill tax so called, derived from assessing all the property in the state situated in cities, towns, plantations, and unorganized townships, at the rate of one mill on the dollar from 1872 to 1907, and since 1907 at the rate of 1 1/2 mills. R. S. c. 15, § 124; Public Laws 1907, c. 111.

This school mill fund is distributed by the Treasurer of State to the several cities, towns, and plantations, according to the number of scholars therein.

The Legislature of 1909 created by the act in question (chapter 177) an additional revenue by imposing a further state tax of 1 1/2 mills upon all of the property in the several cities, towns, plantations, and unorganized townships of the state at the rate of 1 1/2 mills on the dollar, this fund to be known as the "Common School Fund," and to be distributed by the State Treasurer to the several cities, towns, and plantations of the state, one-third according to the number of scholars therein and two-thirds according to the valuation. The support of common schools on the part of the state under the present plan is therefore derived from (1) the permanent school fund; (2) the savings bank and trust company tax; (3) the school and mill fund; and (4) the common school fund. It is this last which is under consideration here.

Municipal Aid.

The several cities, towns, and plantations have, in addition, been compelled by the Legislature to assist in the maintenance of common schools by municipal taxation. The amount thus required has varied from time to time. In 1821 it was fixed at 40 cents per capita, inclusive of the income of any incorporated school fund (Statute 1821, c. 117, § 1); changed in 1832 to 40 cents, exclusive of state income or of any state aid (Public Laws 1832, c. 39); 60 cents, exclusive, as in R. S. 1857, c. 11, § 5; changed to $1, exclusive, by Public Laws 1868, c. 196; 80 cents exclusive of such income, state aid, and of the mill tax from 1872 to 1907 (Public Laws 1872, c. 56, R. S. 1903, c. 15, § 13); 55 cents, exclusive from 1907 to 1909 (Public Laws 1907, c. 111); and since January 1, 1910, 80 cents "exclusive of the income of any corporate school fund, or of any grant from the revenue or fund from the state or of any voluntary donation, devise or bequest" (Public Laws 1909, c. 128), but inclusive of any sums received from the distribution of the common school fund created by the act now under consideration (Public Laws 1909, c. 177, § 6).

It is perhaps unnecessary to add that it has always been and still is within the power of the municipalities to voluntarily raise by taxation such amounts in addition to the required per capita tax as they may deem necessary and proper. Cushing v. Newburyport, 10 Mete. (Mass.) 508; Piper v. Moulton, 72 Me. 155-166.

Let us now take up the constitutional question involved in this case, and consider what the plaintiff deems the vulnerable points in the act in question. We will discuss them seriatim.

It is not contended that the manner in which this tax is assessed violates any constitutional provision. Section 8 of article 9 of the state Constitution requires that "all taxes upon real or personal estate, assessed by authority of this state shall be apportioned and assessed equally according to the just value thereof." The act under consideration meets this requirement fully. The assessment is laid upon all the property both real and personal throughout the state, in all the cities, towns, plantations, and unorganized townships. No property escapes. No locality escapes. All the property is assessed by the state board of assessors at its just valuation and a uniform rate of taxation, 1 1/2 mills, is laid upon all classes of property. No such objection can be raised to the mode of assessment here as in the statute considered in the Opinion of Justices, 97 Me. 595, 55 Atl. 827, where a discrimination was made between land in incorporated and in unincorporated places. Here there is no discrimination. The apportionment and assessment are equal throughout the state.

Objections, however, are raised to the manner of distribution, and the plaintiff contends that in considering the...