Newman v. Schlarb

• Decision Date: 18 October 1935
• Docket Number: 25917.
• Citation: 50 P.2d 36,184 Wash. 147
• Court: Washington Supreme Court
• Parties: NEWMAN et al. v. SCHLARB et al. (STATE BOARD OF EDUCATION et al., Interveners.

50 P.2d 36

184 Wash. 147

NEWMAN et al. v. SCHLARB et al. (STATE BOARD OF EDUCATION et al., Interveners.

No. 25917.

Supreme Court of Washington

October 18, 1935

Department 1.

Appeal from Superior Court, Pierce County; H. G. Sutton, Judge.

Action by Paul Newman, as treasurer of Pierce county, and others against John Schlarb and another, as county commissioners of Pierce county, wherein the state board of education and others intervened. From a judgment for plaintiffs after demurrers to plaintiffs' affidavit were overruled defendants and interveners appeal.

Reversed with direction.

Leo Teats and Ralph Teats, both of Tacoma, for appellants Schlarb, Rankin, Tacoma Dist. No. 10, and Louise S. Taylor.

G. W Hamilton and W. A. Toner, both of Olympia, for appellant State Board of Education.

L. M. Burnett and Jos. E. Hall, both of Vancouver, amici curiae.

Warren G. Magnuson, Wm. Hickman Moore and Edwin C. Ewing, all of Seattle, amici curiae.

John B. Shorett, Robert S. Macfarlane and Frank S. Bayley, all of Seattle, amici curiae.

Harry H. Johnston and John E. Belcher, both of Tacoma, and H. W. Covalt, of Bellingham, for respondents.

STEINERT, Justice.

This action was brought by eight elective officers of Pierce county against the county commissioners of that county to compel the latter to eliminate from their preliminary annual budget any estimate for school purposes for the year 1936. An order was issued by the court temporarily restraining the commissioners from adopting and publishing the proposed preliminary budget and directing them to show cause why the order should not be made permanent. The state board of education, the superintendent of schools of Pierce county and two school districts of Pierce county intervened, aligning themselves with the defendant county commissioners. The defendants and the interveners interposed separate demurrers to the affidavit which formed the basis of plaintiffs' complaint. After argument thereon, the demurrers were overruled, and, the demurrants electing to stand on their demurrers and refusing to plead further, the court entered judgment enjoining the county commissioners from making any levy for school purposes. The judgment was predicated on the sole ground that the statute under which it was proposed to make such levy was unconstitutional. From this judgment, the defendants and interveners have appealed. Upon the appeal we have, in addition to the briefs of the litigant parties, the brief of the prosecuting attorney of King county and his deputies, as amici curiae, espousing the cause of respondents, and the briefs of attorneys representing the Association of First Class School Districts of Washington, who, as amici curiae align themselves with the appellants.

The statute which is now under attack by respondents, and which the trial court held to be unconstitutional, is chapter 28, Laws of 1933, p. 171, § 12, Rem. Rev. Stat. 1935 Supp. § 4936, which reads as follows: 'The county commissioners of the several counties of the state of Washington shall annually at the time of making the tax levy for county purposes, levy a tax on all property subject to taxation in their county, sufficient to produce five cents per day for each pupil in attendance in the common schools of the county during the preceding school year. No district shall be reckoned as having less than two thousand five hundred days' attendance either for revenue or apportionment purposes.' That section is but an amendment of Rem. Rev. Stat. § 4936, which is a part of the school code adopted in 1909, and which originally fixed the amount to be raised by the county for school purposes at $10 for each child of school age therein, provided, however, that such tax should in no case exceed 5 mills on each dollar at the assessed valuation.

The position of the respondents with respect to the necessity for, and the purpose of, this action, and the theory upon which they proceed, is clearly and forcefully stated in the brief of amici curiae supporting respondents, as follows: 'By reason of the constrictions upon the taxing power of the counties of the state of Washington--imposed first by Initiative Measure 64, which became effective December 8, 1932, L. 33, Ch. 4, R. R. S. 1933 Sup. § 11238-1, and later by Initiative Measure 94, which became effective December 3, 1934, L. 35, Ch. 2, R. R. S. 1935 Sup. § 11238-1,--it has become impossible for the counties to meet by taxation the obligations placed upon them by various constitutional, legislative, and judicial mandates, within the limitations imposed by the initiative measures. And it has come to the place where the respective priorities of the various governmental offices, departments, services, institutions, and agencies asserting claims to various proportions of the funds raised by taxation in the counties must be determined, and for the purpose of making such determination recourse now must be had to the basic constitutional provisions imposing their various duties and obligations.'

The position of the appellants is likewise forcefully expressed in the brief of amici curiae who appear on behalf of the school district, as follows: 'The fact that the electors of the state may jockey themselves into an embarrassing and even an impossible situation financially, while it may present to the court certain vexatious questions of one sort or another, does not impose upon this court the necessity, or clothe it with power to rewrite legislation for the benefit of the embarrassed voters. This court is bound by the constitution and legislation as it finds it upon the books, and new legislation is the only method by which those who vote for these measures, either directly or through their legislators, can find relief.'

Proceeding from either viewpoint, as thus reciprocally expressed, it is apparent that what this court is now asked, by the respondents, to do is to arrest the course and effect of successive acts of legislation, as heretofore interpreted by this court, and to prevent an otherwise inexorable conclusion and result by declaring an intermediate act of the Legislature namely, Rem. Rev. Stat. 1935 Supp. § 4936 unconstitutional.

The attack upon the statute is double-fronted, and, in the alternative, according to whether the levy therein prescribed is for a county purpose or for a state purpose. If the levy be considered to be for a county purpose, then it is contended that the statute violates art. 11, § 12, of the State Constitution, which provides that the Legislature shall have no power to impose taxes upon counties, cities, towns, or other municipal corporations, or upon the residents or property thereof, for county, city, town, or other municipal purposes. If, on the other hand, the levy be considered as being for a state purpose, then it is contended that it violates the uniformity clause of the Fourteenth Amendment of the State Constitution and also that provision of Initiative Measure 94 which limits the state levy to 2 mills on the dollar of assessed valuation. It, therefore, becomes necessary at the outset to determine the nature of the purpose for which the levy is to be made.

Sections 1 and 2, art. 9, of the State Constitution provide as follows:

'§ 1. It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex.'

'§ 2. The legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established. But the entire revenue derived from the common school fund, and the state tax for common schools, shall be exclusively applied to the support of the common schools.' (Italics ours.)

Thus, at the very inception of our state government, the framers of the Constitution recognized what all the states of the Union have recognized, namely, that the promotion of the general intelligence of the people constituting the body politic is the most effective way of increasing the usefulness and efficiency of its citizens, upon which the safety and welfare of the government depends. 24 R. C. L. 588.

Pursuant to the constitutional mandate, the state Legislature at its first session established a general uniform system of common schools to be administered by state, county, and school district officers. Laws of 1889-90, chapter 12, p. 348, §§ 1 and 2. The same provisions appear in the present school code adopted in 1909. Rem. Rev. Stat. §§ 4518, 4519.

Our decisions have uniformly recognized that, by the declared policy of the state, the duty of educating the children within its borders is fundamental.

'Our constitution seems to have added to the proper and essential functions of free government the maintenance of public schools.' Rauch v. Chapman, 16 Wash. 568, 576, 48 P. 253, 255, 36 L. R. A. 407, 58 Am. St. Rep. 52.

'An ample provision for the education of children was made paramount, and the duty was imposed upon the Legislature of providing a general and uniform system of public schools.' School District v. Bryan, 51 Wash. 498, 502, 99 P. 28, 29, 20 L. R. A. (N. S.) 1033.

'The Legislature is required by the Constitution to establish an efficient system of public schools. It is the paramount duty of the state to make ample provision for the education of the children of the state.' State ex rel. School District No. 37 v. Clark County, 177 Wash. 314, 321, 31 P.2d 897, 899.

It is apparent that the Legislature, acting in pursuance of the constitutional mandate, saw fit to establish a system which because of its ramifications, was to be administered through the...