Banks v. Board of Ed. of Chase County High School Dist. No. 15

• Decision Date: 27 March 1979
• Docket Number: No. 41884,41884
• Parties: Herman BANKS et al., Appellants and Cross-Appellees, v. BOARD OF EDUCATION OF CHASE COUNTY HIGH SCHOOL DISTRICT NUMBER 15 et al., Appellees and Cross-Appellants.
• Court: Nebraska Supreme Court

Page 76

277 N.W.2d 76

202 Neb. 717

Herman BANKS et al., Appellants and Cross-Appellees, v. BOARD OF EDUCATION OF CHASE COUNTY HIGH SCHOOL DISTRICT NUMBER 15 et al., Appellees and Cross-Appellants.

No. 41884.

Supreme Court of Nebraska.

March 27, 1979.

Syllabus by the Court

1. Section 79-548.01, R.R.S.1943, is not an unconstitutional delegation of legislative authority.

2. The tax authorized by section 79-548.01, R.R.S.1943, provides a necessary revenue within the meaning of Article VIII, section 1, of the Nebraska Constitution.

3. A school athletic facility is a schoolhouse or other building within the meaning of section 79-506, R.R.S.1943.

4. Authority to direct the purchase of a site for a schoolhouse or other school buildings in a Class VI district is reserved to the voters of the district.

5. Section 79-548.01, R.R.S.1943, is a revenue measure which makes no change in school site selection procedure.

6. Architectural fees are general expenses, not expenses of building which must be submitted to the voters.

7. The notice provisions of sections 79-501 et seq., R.R.S.1943, do not apply to a board of education meeting to approve general expenses such as a contract for architectural services.

8. Taxation of costs is a matter resting in the sound discretion of the trial court.

Law Offices of Kenneth Cobb, P. C., Kenneth Cobb, Lincoln, for appellants and cross-appellees.

Murphy, Pederson & Piccolo and LeRoy Anderson, North Platte, for appellees and cross-appellants.

Perry, Perry, Witthoff & Guthery, Lincoln, for Lincoln Public Schools, amicus curiae.

McGill, Koley, Parsonage & Ryan, P. C. by Vern Moore, Jr., Omaha, for Westside Public Schools, amicus curiae.

Malcolm D. Young, Omaha, for Millard Public Schools, amicus curiae.

Shrout, Christian Kriege & Merwald, Omaha, for Ralston Public Schools, amicus curiae.

Deutsch, Jewell, Otte, Gatz, Collins & Domina, Norfolk, for Norfolk Public Schools, amicus curiae.

William G. Cambridge, Hastings, for Hastings Public Schools, amicus curiae.

Sidner, Svoboda, Schilke, Wiseman & Thomsen, Fremont, for Fremont Public Schools, North Bend Public Schools and Logan View Public Schools, amicus curiae.

Kelley Baker, Lincoln, for Nebraska State School Board Ass'n, amicus curiae.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ., and SPENCER, Retired Justice.

WHITE, Justice.

This action was brought by residents and taxpayers of Chase County High School District No. 15, a Class VI district, against the Board of Education of that district. The plaintiffs sought: (1) A declaration that section 79-548.01, R.R.S.1943, is unconstitutional, and an injunction prohibiting the expenditure of funds already collected under tax levies made pursuant to that section; (2) a declaration that a contract for the purchase of real estate for athletic field purposes was null and void; and (3) a declaration that a contract for architectural services entered into by the board was null and void.

The District Court found that the board was without authority to purchase the land, and for the defendants on all other issues. The plaintiffs appeal and the defendants cross-appeal. We affirm.

At an election in which approval of the building of a new school plant was sought, the proposition was defeated. Subsequently the board signed a contract for the purchase of 38 acres of land, not adjacent to the existing site. The board also approved a contract for architectural services in the amount of $11,000, for the design grading, draining, and location of facilities for a running track and football field, on the 38-acre site.

Payment for the land and the architect's fee were met from the special fund established, pursuant to section 79-548.01, R.R.S.1943, from a 4-mill levy approved by the board.

We first address the issue, raised by the plaintiffs, of the constitutionality of section 79-548.01, R.R.S.1943. The section provides: "The board of education of any Class III, IV, V, or VI school district may establish a special fund for the purposes of acquiring sites for school buildings or teacherages and purchasing existing buildings for use as school buildings or teacherages, including the sites upon which such buildings are located, and the erection, alteration, equipping and furnishing of school buildings or teacherages and additions to school buildings for elementary and high school grades and for no other purpose. Such fund shall be established from the proceeds of an annual levy, to be determined by the board of education, of not to exceed four mills on the dollar upon the assessed value of all taxable property in the district, except intangible property which shall be in addition to any other taxes authorized to be levied for school purposes. Such tax shall be levied and collected as are other taxes for school purposes."

Plaintiffs argue that the section is an unlawful delegation of legislative authority. Plaintiffs rely on Lincoln Dairy Co. v. Finigan, 170 Neb. 777, 104 N.W.2d 227, where this court invalidated the statutory scheme authorizing the director of the Department of Agriculture to prescribe regulations for Grade A milk. Violation of the regulations promulgated by the director were made a criminal offense. "The attempt of the Legislature to thus grant to the director the power to create criminal offenses violates all fundamental concepts relating to the delegation of legislative authority." Lincoln Dairy Co. v. Finigan, supra. No criminal penalties are involved here. The power delegated by the statute is the power to levy a tax, and the tax is clearly limited as to amount and purpose. The plaintiffs' contention that the Legislature is without constitutional authority to make such a delegation is without merit. Campbell v. Area Vocational Technical School No. 2, 183 Neb. 318, 159 N.W.2d 817, is controlling here: "A school district is a creation of the Legislature. Its purpose is to fulfill the constitutional duty placed upon the Legislature 'to encourage schools and the means of instruction' and it is a governmental subdivision to which authority to levy taxes may properly be delegated under the Constitution."

Plaintiffs further assert that section 79-548.01, R.R.S.1943, violates Article VIII, section 1, of the Nebraska Constitution. That section provides in part: "The Necessary revenue of the state and its governmental subdivisions shall be raised by taxation in such manner as the Legislature may direct." (Emphasis supplied.) Plaintiffs' position is that since section 79-548.01, R.R.S.1943, contemplates the creation of a fund, the tax it purports to authorize is not for a "necessary" revenue.

The word "necessary" is not one with a clear-cut fixed meaning. Numerous cases have analyzed its meaning within a given statute, contract, or will provision. The plaintiffs cite cases equating "necessary" with "indispensable," e. g., Wolf & Son v. Independent School District, Etc., 51 Iowa 432, 1 N.W. 695. At the other end of the spectrum are those which define "necessary" to include that which is merely "convenient," e. g., Higdem v. Whitham, 167 Mont. 201, 537 P.2d 1185. In this case, the word "necessary" is found in the constitutional provision which is a general grant to the Legislature of the taxing power. The determination of what is necessary revenue under that section can only be made with reference to the duties imposed in the other sections of the Constitution. The relevant "other section" here is Article VII, section 1, Nebraska Constitution, which commands the Legislature to " * * * provide for the free instruction in the common schools of this state of all persons between the ages of five and twenty-one years." If the tax authorized under section 79-548.01, R.R.S.1943, has as its purpose the raising of revenue which could reasonably be said to be necessary for the maintenance of the public schools, then it must be upheld as constitutional. The trial court said: "An analysis of the above stated constitutional provision (Article VIII, section 1)...