Campbell v. Area Vocational Technical School No. 2

• Decision Date: 21 June 1968
• Docket Number: No. 36899,36899
• Parties: Jim CAMPBELL et al., Appellants, v. AREA VOCATIONAL TECHNICAL SCHOOL NO. 2 et al., Appellees.
• Court: Nebraska Supreme Court

Page 817

159 N.W.2d 817

183 Neb. 318

Jim CAMPBELL et al., Appellants, v. AREA VOCATIONAL TECHNICAL SCHOOL NO. 2 et al., Appellees.

No. 36899.

Supreme Court of Nebraska.

June 21, 1968.

Syllabus by the Court

1. The Area Vocational Technical Schools Act, Laws 1965, c. 508, p. 1622, is not in violation of the Fourteenth Amendment to the Constitution of the United States, or of Article I, section 1, of the Constitution of the State of Nebraska, and does not deny to any person the equal protection of the law.

2. Questions of public policy, convenience, and welfare, as related to the creation of municipal corporations, such as counties, cities, villages, school districts, or other subdivisions, or any change in the boundaries thereof, are, in the first instance, of purely legislative cognizance and, when delegated to any public body having legislative power, any action in regard thereto does not come within the due process clause of either the state or federal Constitutions.

3. Assuming that the 'due process' clauses of the state and federal Constitutions were applicable, the Area Vocational Technical Schools Act is in compliance therewith in that it provides for a public hearing and for adequate notice of such hearing.

4. The Area Vocational Technical Schools Act does not provide for an unconstitutional delegation of the legislative taxing power.

5. 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.

6. The Legislature has plenary power and control over school districts including provision for the appointment or election of governing bodies thereof.

7. The maxim of no taxation without representation has a very restricted meaning since it is not contained in the Constitution, and representation is not a condition precedent to the levy of an authorized tax.

8. Taxes levied by an appointive school board are not subject to challenge as taxation without representation. The parties concerned were represented in the Legislature that enacted the law and thereby had the representation required by the maxim.

Stevens & Berry, McCook, for appellants.

Maupin, Dent, Kay, Satterfield & Gatz, Donald E. Girard, Gary L. Scritsmier, North Platte, for appellees.

Cline, Williams, Wright, Johnson, Oldfather & Thompson, Lincoln, DeWayne Wolf, Kearney, for amicus curiae. Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

NEWTON, Justice.

In this action appellants, who are electors and resident taxpayers within the boundaries of Area Vocational Technical School No. 2, seek to have declared unconstitutional the legislative act under which the school is organized and a tax for school purposes levied. The act in question was enacted in 1965 and, since the organization of Area Vocational Technical School No. 2, has been amended in some respects by the 1967 Legislature. It is comprised of sections 79--1445.15 to 79--1445.32, R.R.S.1943, and R.S.Supp., 1967. The trial court found in favor of appellees and dismissed appellants' petition. We affirm the judgment.

Appellants urge that the act contravenes the constitutional guarantee of equal protection as it violates the 'one man, one vote' principle in that it does not require apportionment of representation on the governing board on a population basis.

In view of the pronouncements of the United States Supreme Court in such cases as Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, 691, and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, the 'one man, one vote' factor has become an essential element of the representative process and must be enforced. It will be noted, however, that in all instances where the courts have found that this principle was violated, as in the cited cases, neither the governing bodies affected nor their official acts were voided. Rather, the courts have limited judicial intervention by simply commanding a correction of existing unconstitutional practices and leaving the solution to the appropriate legislative bodies.

In the present case, we are unable to agree that section 79--1445.23, R.R.S. 1943, was in violation of the 'one man, one vote' principle. In determining the feasibility of the proposed school and whether or not the petition therefor should be approved, the State Board of Vocational Education was required to take into consideration: '(12) Whether the proposed apportionment of the board of trustees would provide satisfactory representation for the entire area; * * *.' Section 79--1445.18, R.R.S.1943. It is apparent that the statute contemplated a constitutional distribution of the members of the board of trustees. If, in actual practice, a violation occurred in this respect, an adequate remedy at law was available as indicated by the Baker and Reynolds cases. But, as heretofore pointed out, were we to find the apportionment deficient in such constitutional requirement, we would not be justified in abolishing the board of trustees or in voiding its official acts. The proper remedy would be to require correction in the event any improper apportionment should appear.

It is urged that the act providing for the creation of area vocational technical schools violates the 'due process' requirements of the state and federal Constitutions in that it permits the county commissioners of a county to join in the petition for such a school, thereby subjecting the people of the county to an area-wide election on the proposition of organizing a school of this type and binding them by a majority vote of the electors of the included area. The question presented is primarily one of whether sufficient notice and opportunity for hearing is afforded.

The act provides: 'The governing boards of any educational service unit, any one or more counties, or any educational service unit and any one or more counties may petition the State Board of Vocational Education for the establishment of an area vocational technical school * * *.' The State Board of Vocational Education: '* * * shall set a time and place for public hearing thereon, and shall give notice thereof in writing to each of the governing bodies joining in the petition and shall also cause notice thereof to be published twice, at an interval of one week, in one or more newspapers of general circulation in the area proposed to be included. The last publication to be not less than five nor more than ten days prior the date set for the hearing.' Following the hearing, the State Board of Vocational Education is required to determine the feasibility of the proposed school and in making such determination to give consideration to certain factors specifically mentioned in the act and: 'Such other pertinent factors as may be developed at the hearing * * *.' After the hearing, the State Board of Vocational Education may approve or disapprove the petition, or recommend modifications of the proposal. Upon final approval if such is forthcoming, the proposition must be submitted to a vote of the electors of the area proposed to be included and majority vote governs.

The act requires a consideration of certain factors by the State Board of Vocational Education, but...