Schultes v. Eberly

• Decision Date: 26 May 1887
• Citation: 2 So. 345,82 Ala. 242
• Parties: SCHULTES v. EBERLY.
• Court: Alabama Supreme Court

2 So. 345

82 Ala. 242

SCHULTES v. EBERLY.

Supreme Court of Alabama

May 26, 1887

Appeal from circuit court, Cullman county.

Assumpsit to recover taxes paid under protest by Charles Schultes against H. W. Eberly and J. M. Pickens. The suit having been decided by the justice against the plaintiff, he appealed therefrom to the circuit court of Cullman county, where the complaint was amended by striking out the name of J. M. Pickens; and, the amount in controversy being under $20, the court proceeded to hear and determine the same, and rendered judgment for defendant, from which this appeal is taken. The suit was in assumpsit to recover $3.84 paid as a school tax under compulsion and protest. The said school tax was levied, assessed, and collected under section 11 of an act of the general assembly of Alabama, approved February 14, 1885, (Acts Ala. 1884-85 p. 461,) to establish a separate school-district, to be known as the "Cullman School-District."

W T. L. Cofer, for appellant.

Watts & Son and Geo. H. Parker, contra.

CLOPTON J.

By authority of the eleventh section of "An act to establish a separate school-district, to be known as the 'Cullman School-District,' in Cullman county, Alabama, and for the appointment of trustees for said school-district with certain powers and privileges," the trustees levied a tax, which the appellant paid under compulsion, protest, and with notice of suit, and now sues to recover the amount. Acts 1884-85, p. 461. The question is whether, under the state constitution, it is competent for the legislature to delegate to the trustees the power to tax. We have thus limited the question, as we do not wish what may be said to be understood as applicable to school-districts created within the corporate limits of a municipal corporation, where the power to tax resides in the municipal authorities, and is not in excess of the constitutional limitation. Though the amount in controversy is insignificant, great importance attaches to the question, as it touches and materially affects the legislative attempts, which have come into practice during the last few years, to extend and impart more efficiency to the system of public education, by the establishment of separate school-districts, with powers in the trustees to supplement their share of the general school fund by the levy and collection of a special and additional tax. Its consideration should be approached under a due sense, on the one hand, of the incalculable advantages and benefits of a pervading and efficient system of public education, and on the other of the individual rights and public interests dependent on maintaining intact the organic law, the declared will of the sovereign people. The legislative power conferred on the general assembly is plenary, except as restrained by the federal and state constitutions, and by the rule that it must be legislative in character and purpose. Whoever asserts the unconstitutionality of a statute assumes the burden to show some constitutional prohibition violated, or some limitation exceeded. The prohibition or limitation need not be express; it is sufficient if such is the manifest implication from the tenor and spirit of all the provisions relating to the subject-matter. The taxing power is legislative, and, being an incident of sovereignty, is only limited, as to the subjects and rates of taxation, in the absence of constitutional limitation, by public purposes and the needs of the government. But we have not to deal with the power to tax as conferred on the general assembly. The right to exercise legislative power, and to delegate it to subordinate agencies and auxiliaries, are essentially different questions. The rule of constitutional law is that, when the constitution creates a department on which sovereign power is conferred, the grant is exclusive, except as its delegation may be authorized by the granting instrument. The power to tax, so unlimited in capacity, so far-reaching in effect, and so liable to abuse, peculiarly falls within the operation of this rule. Cooley, Tax'n, 61. Whoever, in such case, asserts competency to delegate, assumes the onus to show constitutional authority, express or clearly implied.

Article 13 of the constitution (1875) commands: "The general assembly shall establish, organize, and maintain a system of public schools throughout the state, for the equal benefit of the children thereof." The duty being enjoined, it is insisted that the incidental and necessary powers to its performance should be implied, including, not only the power to establish separate school-districts, but also to confer on the trustees of such school-districts the power to tax for educational purposes. The article designates special funds and a special tax, which, with such moneys as the general assembly shall provide by taxation or otherwise, constitute the public school fund, which it is made the duty of the general assembly to increase from time to time, as the condition of the treasury and the resources of the state will admit. Section 4 declares that the general assembly shall provide for the levying and collection of an annual poll-tax which shall be applied to the support of the public schools in the counties in which it is levied and collected. Other than a poll-tax the article does not import that taxes shall be imposed specially for...