Peterson v. Hancock

• Decision Date: 06 June 1952
• Docket Number: No. 33172,33172
• Citation: 155 Neb. 801,54 N.W.2d 85
• Parties: PETERSON v. HANCOCK.
• Court: Nebraska Supreme Court

Page 85

54 N.W.2d 85

155 Neb. 801

PETERSON v. HANCOCK.

No. 33172.

Supreme Court of Nebraska.

June 6, 1952.

Syllabus by the Court.

1. Chapter 250, Laws of Nebraska, 1949, page 680, appearing as sections 79-438.01 to 79-438.07, R.R.S.1943, is not unconstitutional for defect of title in violation of Article III, section 14, Constitution of Nebraska.

2. However, sections 4 and 5 of the act, now appearing as sections 79-438.04 and 79-438.05, R.R.S.1943, are unconstitutional as in violation of Article VIII, section 1, and Article VIII, section 4, Constitution of Nebraska.

3. Since the remainder of the act is so connected with the aforesaid invalid portions that it cannot be upheld without doing violence to the legislative intent as a whole, the entire act must fall as unconstitutional.

Davis, Stubbs & Healey, Lincoln, Julius D. Cronin, O'Neill, H. A. Bryant, Wahoo, for appellant.

Clarence S. Beck, Atty. Gen., William T. Gleeson, Asst. Atty. Gen., for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiff, a resident, real-property owner, and taxpayer of Class I elementary school district No. 231, having an enrollment of less than five pupils, in Holt County, Nebraska, brought this action for himself and all others similarly situated, against defendant county treasurer, to have Chapter 250, Laws of Nebraska, 1949, page 680, known as the Blanket Mill Tax Levy Act, now designated as sections 79-438.01 to 79-438.07, inclusive, R.R.S.1943, declared unconstitutional and void; to enjoin the levying, assessing, collecting, or attempting to collect any part or all of the taxes purportedly authorized thereby; and for equitable relief. Defendant answered, admitting that plaintiff was a resident, real-property owner, and tax-payer as alleged, denying unconstitutionality of the act, and alleging that unless restrained he intended to perform his duties required thereby. He prayed for a declaration of constitutionality and for equitable relief.

After a hearing whereat evidence was adduced, the trial court rendered its decree, finding and adjudging the issues generally against plaintiff and in favor of defendant. Plaintiff's motion for new trial was overruled, and he appealed, assigning that the trial court erred in declaring the act constitutional. We sustain the assignment.

For clarity and brevity, the Blanket Mill Tax Levy Act will be hereinafter referred to as the act, and in discussing its provisions we will refer to the sections as they appear in Chapter 250, Laws of Nebraska, 1949, page 680.

The pertinent facts are not in dispute. School district No. 231 in which plaintiff's property is located, has fewer than five pupils enrolled for the school year 1951-1952. For the 1950-1951 school year there were 31 elementary school districts in Holt County having fewer than five pupils, all of which operated and maintained their own schools, and 10 other such districts had no pupils. During the year 1951-1952 there were 22 such schools having fewer than five pupils and 16 of them operated and maintained their own schools.

On August 6, 1951, plaintiff tendered and offered to pay defendant, who refused to accept, the amount of all taxes levied against his property for all purposes, including all school district levies except the amount of a four-mill levy made under purported authority of section 2 of the act. Admittedly plaintiff's property was assessed for tax purposes at a valuation of $235,995 for 1950, and on August 3, 1950, there was levied thereon, concurrently with other lawful levies, a tax in the amount of four mills, and the amount of the tax to be derived as a consequence of such imposition upon plaintiff's property was $934.98.

No part of district No. 231 is separated from other elementary school districts by streams of water or other natural barriers, nor would any children presently residing therein be required to travel in excess of four miles over unsurfaced roads to the next school, so that such district does not come within the provisions of section 6 of the act.

On June 11, 1951, district No. 231 had $7.09 cash on hand. On said date there was in the hands of the county treasurer $848.89 belonging to such district, and there was $723 representing other outstanding and unpaid taxes for school purposes for said district. On that date the school board and electors at the annual meeting adopted a budget of $1,718.50 needed for operating expenses during the 1951-1952 school year, which amount was duly certified to the county clerk, and thereafter the county board of equalization levied a tax upon all property in the district of 3.8 mills for school purposes upon an assessed valuation of $521,635, which, if all collected, would produce $1,982.21.

Thereafter on or about July 1, 1951, for 'the first year' during which 'no district shall lose its blanket tax' as provided in section 4 of the act, the district received back $635.25 from the county treasurer same being the distribution to it from the 1950 blanket mill tax school levy of four mills made in Holt County by the county board of equalization. Such levy for 1951 was also four mills, no part of which was or could be distributed back to the district or others of like character because, as provided by section 4 of the act, in order to be eligible therefor: 'After the first year' it 'must have had an enrollment of five or more students for the school year immediately preceding this levy.' Such sums went into a general fund and were apportioned to other eligible districts in the county, including two high school districts as provided by sections 4 and 5 of the act. The State Superintendent of Public Instruction furnished forms to all county superintendents to be used by them for the computation, allocation, and distribution of money from the blanket mill tax levy, and to carry out the provisions of the act, as provided therein.

After defining blanket tax levy as a minimum tax levy on all elementary school districts within a county, as more particularly set forth in section 2, and defining merging of districts, the act provides:

'Sec. 2. A blanket mill levy tax sufficient to raise two-thirds of the cost of operating the elementary school districts of a county shall be levied upon the actual value of all the taxable property in the elementary school districts of a county, except intangible property. The amount of this levy shall be determined by the county treasurer from figures based on the previous year's expenditures of the elementary school districts of the county, but in no instances shall this blanket tax levy exceed four mills.

'Sec. 3. The returns from this levy shall be paid by the county treasurer on an order from the county superintendent to those districts that are eligible to receive these funds as provided in section 5 of this act.

'Sec. 4. After the first year, to be eligible to receive these funds a district must have had an enrollment of five or more students for the school year immediately preceding this levy. During the first year no district shall lose its blanket tax because of this provision. Nothing in this section shall prohibit a high school district from participating in such funds if it shall be eligible under the provisions of section 5 of this act nor a district which qualifies under section 6 of this act.

'Sec. 5. The funds raised by the blanket mill levy tax shall be distributed as follows: (1) The entire amount of the blanket tax collected on taxable property within a district shall be refunded to those districts that maintain school and have a total of five or more pupils enrolled; Provided, if the district does not require the total blanket tax, it shall receive only that portion needed; (2) those schools which contract for instruction of pupils shall receive an amount required for carrying out such contract and transportation of pupils, but in no case more than the blanket tax raised in such school district; (3) two-thirds of the remainder of the amount raised, after the payments required by subdivisions (1) and (2) of this section, shall be distributed equally to those districts that have an average daily attendance of five or more for the school year immediately preceding; and (4) one-third of the remainder, after the payments required by subdivisions (1) and (2) of this section, shall be apportioned to the eligible districts on the basis of their average daily attendance; Provided, that no district shall receive more funds under subdivisions (3) and (4) of this section than is required for school purposes. If a high school district shall contract for elementary pupils, it shall qualify as a unit for distribution under subdivisions (3) and (4) of this section the same as an elementary school district if five or more such pupils are taught in said high school district under contract with an elementary district or districts.

'Sec. 6. When streams of water, other natural barriers, or extreme distances that pupils are required to travel make the merger of school districts impractical, those districts having an enrollment of five or less shall become eligible for payment under subdivision (1) of section 5 of this act where an application is made to and approved by the county superintendent. The term extreme distances, as referred to in this section, shall mean that any of the pupils of that district would be required to travel in excess of four miles over unsurfaced roads to the nearest school.'

We are not here particularly concerned with the first year of operation since this action necessarily involves only the levy and payment of the second year and subsequent levies, which are distributed on an entirely different basis. By simple computation it will be observed that a four-mill levy on an assessed valuation of $521,635 upon the property in district No. 231 will raise a fund of $2,086.54, an amount to be paid by the taxpayers therein,...