High School District No. 137, Havelock, Nebraska v. Lancaster County, Nebraska

• Decision Date: 18 April 1900
• Docket Number: 11,165
• Citation: 82 N.W. 380,60 Neb. 147
• Parties: HIGH SCHOOL DISTRICT No. 137, HAVELOCK, NEBRASKA, v. LANCASTER COUNTY, NEBRASKA
• Court: Nebraska Supreme Court

82 N.W. 380

60 Neb. 147

HIGH SCHOOL DISTRICT No. 137, HAVELOCK, NEBRASKA, v. LANCASTER COUNTY, NEBRASKA

No. 11,165

Supreme Court of Nebraska

April 18, 1900

ERROR to the district court for Lancaster county. Tried below before CORNISH, J. Affirmed.

AFFIRMED.

C. W Corey and Robert Ryan, for plaintiff in error:

It was said in Pleuler v. State, 11 Neb. 547: "To justify a court in pronouncing an act of the legislature unconstitutional, it must be clear and free from reasonable doubt that it is so--not a doubtful and argumentative implication. Or, in other words, a statute should not be held invalid unless it is clearly forbidden by the paramount law. Such substantially has been the holding of all courts speaking upon this subject. Cooper v. Telfair, 4 Dallas [U.S.], 14; Sharpless v. The Mayor, 21 Pa. 147; Adams v. Howe, 14 Mass. 340; City of Lexington v. McQuillan, 9 Dana [Ky.], 513; Santo v State, 2 Ia. 165; State v. County Judge, 2 Ia 280; Fisher v. McGirr, 1 Gray [Mass.], 1; Sears v. Cottrell, 5 Mich, 251; Tyler v. People, 8 Mich. 333; Hill v. Higdon, 5 Ohio St. 243." This doctrine was reiterated afterward by this court in In re Creighton, 12 Neb. 280, and in Van Horn v. State, 46 Neb. 62, was clearly recognized.

T. C. Munger and J. L. Caldwell, contra:

The act of 1899 violates section 1, article 9, and section 4, article 9, and section 6, article 9, of the constitution. This court has often declared that taxes shall be levied with uniformity and equality. Clother v. Maher, 15 Neb. 1; Turner v. Althaus, 6 Neb. 54; 25 Am. & Eng. Ency. Law, 60.

This court has also often declared that no exemption from taxation can be tolerated. State v. Poynter, 59 Neb. 417; State v. Graham, 17 Neb. 43; Union P. R. v. Saunders County, 7 Neb. 228; O'Kane v. Treat, 25 Ill. 557; Dyar v. Farmington, 70 Me. 515; Fletcher v. Oliver, 25 Ark. 289; Gunnison v. Owen, 7 Colo. 467; Sanborn v. Rice, 9 Minn. 258; Wells v. Weston, 22 Mo. 384.

But the constitution of Nebraska, article 9, section 6, allows municipal corporations to assess and collect taxes for corporate purposes. This is a restriction of the power of a municipal corporation, such as a county, to collect taxes for any other than corporate purposes. This is the general doctrine when the constitution does not so expressly provide. Cooley, Taxation [2d ed.], pp. 689-692.

Our constitution is adopted in this clause from the constitution of Illinois, and we adopt the construction placed on this clause by that state. Magneau v. City of Fremont, 30 Neb. 843; City of York v. Chicago, B. & Q. R. Co. 56 Neb. 572.

And in Illinois the same clause is held to be a limitation restricting the taxation to proper corporate purposes. Harward v. St. Clair, 51 Ill. 130 (1869); Primm v. Belleville, 59 Ill. 142; Sleight v. People, 74 Ill. 47; People v. Trustees, 78 Ill. 136.

In Town of Belle Point v. Pence, 17 S.W. [Ky.], 197, the Kentucky court held that a law authorizing children outside of a school district to attend it free of tuition, was violative of the constitution of that state. Similar cases involving the same principle that laws are invalid when imposing taxation or a public burden which is not for corporate purposes are given below; as allowing a city to pay for improving a city harbor; granting aid to a state normal school out of local school funds; imposing the cost of a county court house on certain townships in the county; requiring a county to pay for a bridge for a city within it, or a county to pay for an armory for state militia, and other similar illustrations. Hasbrouck v. Milwaukee, 13 Wis. 37; State v. Haben, 22 Wis. 660; People v. Ulster, 94 N.Y. 263; In the Matter of Lands, 60 N.Y. 398; Simon v. Northup, 40 P. 560; Hubbard v. Fitzsimmons, 57 Ohio St. 436; Farris v. Vannier, 6 Dak. 186; Wells v. Weston, 22 Mo. 384.

C. W. Corey and Robert Ryan, in reply:

The power of apportionment is included in the power to impose taxes and is vested in the legislature; and, in the absence of any constitutional restraint, the exercise by it of such power of apportionment can not be reviewed by the courts. People v. Mayor of Brooklyn, 4 Comst. [N.Y.], 419. The constitutions of some of our sister states contain special provisions designed to guard against an inequitable exercise of this power and to secure equality in the distribution of the public burdens. A violation of any such provisions would undoubtedly be cognizable by the courts. But in this state such restraints have not been deemed necessary and the people have been content to leave the wisdom and justice of the legislature, unrestrained by specific regulations, the subject of determining how the public burdens shall be apportioned among them. Providence Bank v. Billings, 4 Peters [U.S.], 513, 561, 563; Thomas v. Leland, 24 Wend. [N.Y.], 65; Town of Guilford v. Supervisors of Chenango, 13 N.Y. 143 Bank of Rome v. Village of Rome, 18 N.Y. 38; Brewster v. City of Syracuse, 19 N.Y. 116.

A. G. Greenlee also appeared for plaintiff in error.

OPINION

NORVAL, C. J.

This suit was brought in the district court of Lancaster county to test the constitutionality of sections 1 and 3, chapter 62, of an act of the legislature approved April 1, 1899, entitled, "An act to provide free attendance at public high schools of non-resident pupils; to provide for the expense thereof, and to amend section 3 of subdivision 6, sections 2 and 7 of subdivision 14, and 2 of subdivision 17, chapter 79, Compiled Statutes of Nebraska for 1897, and to repeal said original sections now existing," Session Laws 1899, ch. 62; Compiled Statutes, ch. 79, subdivision 6. The sections mentioned are as follows:

"Sec. 1. That all regularly organized public high schools determined by the state superintendent of public instruction to be properly equipped as to teachers, appliances, and course of study, shall hereafter be open to attendance by any person of school age residing outside of the district, resident of the state, whose education can not profitably be carried further in the public school of the district of his residence; Provided, * * * that said pupil has completed the common school course prescribed by the state superintendent for work below the high school; Provided, further, such non-resident pupils shall be subject in all respects to the same rules and restrictions as those which govern resident pupils attending such high school, and attend the nearest high school of approved grade, or any high school of approved grade in the county of their residence; Provided, further, when any high school shall be unable to furnish accommodations to non-residents without constructing or renting additional buildings, the board of education may refuse admission to such pupils.

"Sec. 3. The school board of each school district of this state whose high school is attended by pupils under the provisions of this act, shall, at the close of each school year, report in such form as the state superintendent may prescribe, to the county board of each county in which such pupils are residents, the number of pupils attending such high school from said county and the length of time of attendance of each pupil in weeks as hereinafter specified, and said county board shall, at the first regular meeting after the filing of such report, allow said district the sum of seventy-five cents for each pupil reported for each week during any part of which said pupil shall have been in attendance, and order a warrant drawn on the general fund of said county in favor of said school board for such sum, and the teacher's register shall be prima facie evidence of attendance of pupils set forth in such claim."

Under this act, High School District No. 137, of Havelock, Nebraska, filed a petition in the district court of Lancaster county, on appeal from the disallowance of its claim against the county for tuition for pupils attending its high school, resident within said county, but outside said high school district. To this petition a general demurrer was sustained, and, the plaintiff electing to stand on its petition, the action was dismissed, and it comes to this court on error.

It is argued that inasmuch as a taxpayer inside the high school district must, under this act, pay the difference, if any, between the cost of tuition of non-resident pupils and the seventy-five cents per week allowed by section 3 of the act to be paid out of the general fund of the county, and must also pay his proportionate share of the seventy-five cents per week, with the other taxpayers of the county, in addition to bearing the whole of the expense of educating those pupils resident within the limits of the high school district, the law violates section 1, 4 and 6 of article 9 of the constitution. Said sections are as follows:

"Sec 1. The legislature shall provide such revenue as may be needful, by levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property and franchises the value to be ascertained in such manner as the legislature shall direct, and it shall have power to tax peddlers, auctioneers, brokers, hawkers, commission merchants, showmen, jugglers, inn-keepers, liquor dealers, toll bridges, ferries, insurance, telegraph and express interests or business, venders of patents, in such manner as it shall direct by general law, uniform as to the class upon which it operates.

"Sec 4. The legislature shall have no power to release or discharge any county, city, township, town, or district whatever, or the inhabitants thereof, or any corporation, or the property therein, from their or its proportionate share of taxes to be levied for state purposes, or due any municipal corporation, nor shall commutation for such taxes be authorized in...