Chicago, B. & Q.R. Co. v. School Dist. No. 1 in Yuma County

• Decision Date: 07 May 1917
• Docket Number: 8512.
• Citation: 165 P. 260,63 Colo. 159
• Court: Colorado Supreme Court
• Parties: CHICAGO, B. & Q. R. CO. v. SCHOOL DIST. NO. 1 IN YUMA COUNTY et al.

165 P. 260

63 Colo. 159

CHICAGO, B. & Q. R. CO. v. SCHOOL DIST. NO. 1 IN YUMA COUNTY et al.

No. 8512.

Supreme Court of Colorado

May 7, 1917

Error to District Court, City and County of Denver; James H Teller, Judge.

Action by the Chicago, Burlington & Quincy Railroad Company, a corporation, against School District No. 1, County of Yuma and another. Judgment for defendants, and plaintiff brings error. Affirmed.

E. E Whitted and Thos. R. Woodrow, both of Denver, for plaintiff in error.

Jo. A. Fowler, of Denver, for defendants in error.

ALLEN J.

This was an action brought by the Chicago, Burlington & Quincy Railroad Company to recover a portion of the 'Special School Tax' paid by the company under protest to the treasurer of Yuma county. The school board of the defendant, school district No. 1, certified to the board of county commissioners of Yuma county a 20-mill levy, the board made the same, and the assessor used the levy in extending taxes against the property of the plaintiff railroad company. The levy was certified and made under chapter 206 of the Session Laws of 1911, being an act entitled

'An act to amend section five thousand eight hundred and ninety-five (5895) of the Revised Statutes of Colorado, 1908.'

The complaint was drawn upon the theory that this act is one for raising revenue, within the meaning of section 31 of article 5 of the Constitution of the state of Colorado, and, the bill having originated in the Senate, the act is unconstitutional and void because enacted in violation of the above constitutional provision. A demurrer to the complaint was sustained, and, the plaintiff electing to abide by the complaint, judgment was entered for defendants. Plaintiff brings the case here upon error. The sole question presented by the assignments of error and briefs of counsel is the constitutionality of chapter 206 of the Session Laws of 1911.

Chapter 206 of the Session Laws of 1911, the act in question, was an act amending section 5895, Revised Statutes of 1908. That section was a part of the school laws of the state, which are embraced in chapter 124 of the Revised Statutes of 1908. These laws were enacted in obedience to section 2 of article 9 of the Constitution, which is as follows:

'The General Assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously. One or more public schools shall be maintained in each school district within the state, at least three months in each year; any school district failing to have such school shall not be entitled to receive any portion of the school fund for that year.'

The first legislation pursuant to the above constitutional requirement was chapter 92 of the General Laws of 1877, entitled 'Schools,' the same consisting of an act entitled 'An act to establish and maintain a system of free schools,' approved March 20, 1877. G. L. 1877, pp. 807-841, §§ 2447-2544. The section of the act of 1877 corresponding in its subject-matter to section 5895, R. S. 1908, was section 66. This section, among others, was amended by the Laws of 1881, p. 211. The school laws were carried into the General Statutes of 1883 under chapter 97 thereof, and section 66 became section 67, G. S. 1883, § 3062. The act was again amended in 1887 by an act entitled 'An act to amend chapter 97 of the General Statutes entitled 'Schools." Section Laws 1887, p. 379. The act of 1887, among other things, amended section 67, and that section, as amended, became section 5895, R. S. 1908.

As a first step in the consideration of the case at bar, it is proper to determine whether or not the act of 1877, above mentioned, was an act 'for raising revenue' within the meaning of section 31 of article 5 of the state Constitution, which reads:

'All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose amendments, as in case of other bills.'

The main purpose of the act of 1877 was 'the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.' The provisions which it contained for the levy and collection of taxes was incident to the main purpose, but such provisions were necessary in order that the main purpose might be carried out and a school system established and maintained. With respect to the taxation provisions being incident to the main purpose of the statute, the act of 1877 is analogous to many laws, both state and federal. In the case of Assurance Co. v. Clayton, 54 Colo. 256, 130 P. 330, the court, in speaking of chapter 193 of the Session Laws of 1907, which was an insurance act, used the following language:

'A bill designed to accomplish some well-defined purpose other than raising revenue, is not a revenue measure. Merely because, as an incident to its main purpose, it may contain provisions, the enforcement of which produces a revenue, does not make it a revenue measure. Revenue bills are those which have for their object the levying of taxes in the strict sense of the words. If the principal object is another purpose, the incidental production of revenue growing out of the enforcement of the act will not make it a bill for raising revenue.'

In the case of Geer v. Board of Commissioners, 97 F. 435, 38 C.C.A. 250, the United States Circuit Court of Appeals had under consideration, among other things, the constitutionality of the act of 1889 (Session Laws Colo. 1889, pp. 31, 32), authorizing counties to refund their judgment and bonded debts, which act provided for certain levies for carrying out the purposes of the act. To the contention that the act, having originated in the Senate, was void because it was a bill 'for raising revenue,' within the meaning of section 31, art. 5 of the state Constitution, the court replied:

'But a bill for raising revenue, within the meaning of this provision of the Constitution, is one which provides for the levy and collection of taxes for the purpose of paying the officers and of defraying the expenses of the government. This act was not of that character. Its main purpose was to authorize certain quasi municipal corporations to refund their debts. The provisions for the levy and collection of taxes which it contained were mere incidents to the general refunding legislation which it carried. * * * These provisions raise no revenue for the government, but, on the other hand, the act expressly provided that the moneys derived from the levies made under it should not be appropriated to pay the officers of the state or of the county, or to defray the expenses of governing the people. * * *'

The language quoted from the above cases is in accord with numerous authorities. U.S. v. Mayo, 26 Fed. Cas. No. 15,755; U.S. v. James, 26 Fed. Cas. No. 15,464, 13 Blatch. 207; Northern Counties Trust v. Sears, 30 Or. 388, 41 P. 931, 35 L.R.A. 188; U.S. v. Norton, 91 U.S. 569, 23 L.Ed. 454; Twin City Bank v. Nebeker, 167 U.S. 196, 17 S.Ct. 766, 42 L.Ed. 134; Fletcher v. Oliver, 25 Ark. 289; Commonwealth v. Bailey, 81 Ky. 395; 1 Story on the Constitution (5th Ed.) 880; 36 Cyc. 946. The case of Fletcher v. Oliver, supra, contains the following expression:

'There are many laws that provide for raising money by taxation that are not revenue laws. The law under which the city derives the power to tax the property within its limits, originated in the Senate. The law organizing schools, and permitting the levy of a tax for that specific purpose, originated in the Senate, and no one ever dreamed of calling them revenue laws.'

Under the authorities cited (and there appear to be none to the contrary) there can be no question but that the act of 1877, providing for the establishment and maintenance of a system of free schools, was not an act 'for raising revenue' within the meaning of section 31 of article 5 of the state Constitution. The Senate, therefore, had the power to originate the bill which became the act of 1877. If the Senate had the power to originate a general and complete statute, as was the act of 1877, there does not appear to be any good reason why the Senate cannot originate a series of acts when each is but a part of the complete and general law and all, taken together, are, and amount to the same, as one complete and general act.

It is true that in a general act, as in the act of 1877, the provisions for the levy and collection of taxes are incident to the main purpose of the statute, while in a special act such provisions may be all that is contained in the same. But it appears from most of the authorities cited that the general act under consideration in those cases was upheld not only because the taxation features therein were incident to the main purpose of the act, but also because the taxation provided for was not that kind of taxation which was for paying officers or defraying the...