Merrill v. Spencer

• Decision Date: 12 December 1896
• Docket Number: 758
• Court: Utah Supreme Court
• Parties: LYDIA Y. MERRILL, APPELLANT, v. JOHN D. SPENCER, RESPONDENT

46 P. 1096

14 Utah 273

LYDIA Y. MERRILL, APPELLANT, v. JOHN D. SPENCER, RESPONDENT

No. 758

Supreme Court of Utah

December 12, 1896

Appeal from the Third district court, Salt Lake county. Hon. M. L Ritchie, Judge.

Action by Lydia Y. Merrill against John D. Spencer, county collector, to restrain the collection of a tax levied under the provisions of section 91 of the revenue act, Laws of 1896, p. 451. This section provides that the board of county commissioners each year "must levy taxes upon the taxable property of the county, not exceeding five mills on the dollar for county purposes, nor three mills on the dollar for district school purposes." From an order sustaining a demurrer to the complaint, and a judgment of dismissal plaintiff appeals.

Reversed.

Williams Van Cott & Sutherland, and Bennett, Harkness, Howat & Bradley, for appellant.

C. O. Whittemore, for respondent.

The plaintiff, in her complaint, alleges, in substance, that she is a resident of Salt Lake City, in Salt Lake county, and the owner of property in Salt Lake City; that a tax for county school purposes of two mills on the dollar has been levied in Salt Lake county in 1896; that said county school tax is levied for the support of the district schools within and without Salt Lake City, but all within Salt Lake county; that the total sum of said tax, if collected, would amount to $ 87,012.98, and the amount thereof that would be collected from Salt Lake City alone would amount to $ 71,956.26, and that of such school tax Salt Lake City would pay in excess of the amount distributed to it according to the number of school children the sum of $ 30,580; that there is a board of education duly organized and in control of the public school system within Salt Lake City, and such board has been, and now is, maintaining and controlling the public school system in Salt Lake City, and has levied a city tax for the year 1896 on all taxable property, for the support and maintenance of such city public schools; that such board pays its city superintendent of schools, members of its board of examiners, its treasurer, and all other incidental, proper, and necessary expenses from its own funds; that plaintiff is assessed for said county school purposes for the year 1896, on her land specified, the sum of $ 106.38, and has paid all the taxes assessed against her except the said sum assessed as county school taxes; that during the years 1893 to 1896, both years inclusive, and prior thereto, Salt Lake City paid into the territorial school fund a large amount annually in excess of what it received from such school fund, when the same was distributed according to the number of school children; that Salt Lake City is a city of the first class; that said defendant will sell the property of plaintiff to collect said county school tax, unless restrained, and plaintiff's title thereto become thereby clouded,--and prays for an injunction, etc. To this complaint defendant filed a demurrer, alleging that the same does not state facts sufficient to constitute a cause of action, nor to entitle the plaintiff to the relief sought. The demurrer was sustained. Plaintiff elected to stand upon her complaint. Thereupon the court dismissed said plaintiff's complaint, with costs. From this judgment and order the plaintiff appeals, and alleges that the court erred in sustaining the demurrer, dismissing the complaint, and refusing to grant the injunction prayed for, and that there is no law authorizing the collection of any county school tax on property within Salt Lake City.

MINER J., delivered the opinion of the court. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.

, after stating the case, delivered the opinion of the court.

The only question presented by this appeal is whether there is any law in this State authorizing the levy and collection of any county school tax on property within said Salt Lake City. It is conceded that for many years before Utah became a state a school tax was levied within the territory, which constituted the territorial school fund. It was collected according to the value of the property, and distributed according to the number of school children of school age. According to the working of the system, Salt Lake City paid annually into the school fund a large sum in excess of what it received back. A county school tax was likewise levied in the county which includes Salt Lake City, in the same manner and the fund was distributed the same. What was true of Salt Lake City with reference to the territory, was also true with reference to the county. In this way Salt Lake City paid annually large amounts into both funds in excess of what it received back. Counties having no cities of the first and second class were not subject to this system of excessive or double taxation. Section 6 of article 10 of the constitution of Utah provides that "in cities of the first and second class, the public school system shall be maintained and controlled by the board of education of such cities, separate and apart from the counties in which said cities are located." The principal question in this case is as to the meaning of the word "maintained," as used in this section. Section 2996, Comp. Laws Utah 1888, provides that "words and phrases are construed according to the context, and the approved usage of the language. * * * " Webster, in subdivision 4, defines the word "maintain" to mean "to bear the expense of; to support; to keep up; to supply with what is needed." Section 26 of article 1 of the constitution says, "The provisions of this constitution are mandatory, and prohibitory, unless by express words they are declared to be otherwise." It is a familiar rule of construction that a word repeatedly used in a statute will be presumed to bear the same meaning throughout the statute, unless there is something to show that there is another meaning intended. Article 10 of the constitution relates to education, and provides with reference to the different educational institutions of the State. In section 1 of article 10 of the constitution the legislature is required to provide for the establishment and maintenance of a uniform system of public schools. In section 2 of article 10 it is provided that high schools shall be maintained free in all cities of the first and second class. In the latter part of the same section the word "maintain" is used in connection with moneys apportioned to support schools. In section 10 the word "mainte...