Shepherd v. San Jacinto Junior College Dist.

• Decision Date: 19 December 1962
• Docket Number: No. A-8712,A-8712
• Citation: 363 S.W.2d 742
• Parties: Leon SHEPHERD et al., Appellants, v. SAN JACINTO JUNIOR COLLEGE DISTRICT et al., Appellees.
• Court: Texas Supreme Court

Page 742

363 S.W.2d 742

Leon SHEPHERD et al., Appellants, v. SAN JACINTO JUNIOR COLLEGE DISTRICT et al., Appellees.

No. A-8712.

Supreme Court of Texas.

Dec. 19, 1962.

Rehearing Denied Jan. 16, 1963.

Charles B. Spicer, Jr., Pasadena, Andrews, Kurth, Campbell & Jones, Houston, Homer Mabry and Hall E. Timanus, Houston, with above firm, for appellants.

Stanley D. Gaskin, pasadena, Ernest A. Knipp, Houston, for appellees.

NORVELL, Justice.

The question involved in this appeal is whether or not that portion of Article 2815h, Sec. 7 Vernon's Ann.Civ.Stats. ¹ which provides that a junior college district may levy and collect a local ad valorem tax for the support and maintenance of a junior college is a valid constitutional enactment.

The appellants, Leon Shepherd and others, own real property within the boundaries of the appellee, San Jacinto Junior College District which is organized as a Union Junior College District under the provisions of Article 2815h, Vernon's Ann.Tex.Stats. Said landowners, as plaintiffs in the District Court, sought to enjoin the collection of a local ad valorem tax levied by the school district for maintenance purposes. They recognized the legal existence of the district and conceded that the tax is authorized by the wording of Article 2815h, Sec. 7, but asserted that the statute is unconstitutional insofar as it undertakes to authorize the levy of ad valorem taxes for the support and maintenance of a junior college. The trial court upheld the validity of the statute and denied the injunction. Leon Shepherd and his co-plaintiffs have appealed to this Court as permitted by Article 5, Sec. 3b, Texas Constitution, Article 1738a, Vernon's Ann.Tex.Stats. and Rule 499a, Texas Rules of Civil Procedure.

Preliminary to setting forth the contentions of the parties, we may properly allude to some well-recognized principles of constitutional law which are applicable here. A state constitution, unlike the federal constitution, is in no sense a grant of power but operates solely as a limitation of power. 'All power which is not limited by the constitution inheres in the people, and an act of a state legislature is legal when the Constitution contains no prohibition against it.' Watts v. Mann, Tex.Civ.App., 187 S.W.2d 917, wr. ref., 11 Am.Jur. 619, Constitutional Law, Sec. 18. All intendments are against restrictions upon the legislative power and the applicable rule was stated by this Court in State v. Brownson, 94 Tex. 436, 61 S.W. 114 as follows:

'The legislative department of the state government may make any law not prohibited by the constitution of the state or that of the United States. Therefore the rule is that, in order for the courts to hold an act of the legislature unconstitutional, they must be able to point out the specific provision which inhibits the legislation. If the limitation be not express, then it should be clearly implied.'

It follows that if there be no limitation found in the Constitution, the legislature would be fully empowered to create or authorize the creation of junior college districts and authorize them to levy an ad valorem tax.

The appellants do not dispute the rules above stated nor do they contend that the Constitution in so many words provides that the legislature shall not authorize a junior college district to levy an ad valorem tax. They do, however, say that the legislative power to authorize a local ad valorem tax for junior colleges is denied by clear implication.

There have been a number of briefs filed in this case by Amici Curiae, including one by the Attorney General. As opposed to appellants' theory of implied limitation, the briefs submit two theories: (1) that there is no provision of the Constitution which either expressly or impliedly prohibits the legislature from establishing a junior college district and authorizing it to levy an ad valorem tax, and (2) that the legislative power to authorize a junior college district to levy an ad valorem tax is supported by the provisions of Article 7, Sec. 3 of the Constitution.

The majority of this Court is of the opinion that Article 2815h, Sec. 7 should be held valid and enforceable under the second theory above mentioned.

The solution of the problem is not free of difficulty. Our school laws have been characterized as confused, vague and conflicting. Barber v. County Board of Trustees, Tex.Civ.App., 43 S.W.2d 319, no wr. hist., and lack of clarity is found in both constitutional and statutory enactments. Article 7, Sec. 3 of the Constitution which is of importance here has been amended some six times since its adoption as a part of the Constitution of 1876. These amendments must be noticed in some detail in order to arrive at a proper understanding of the historical background of the case. A junior college district is here involved and while some state schools bearing a resemblance to the present day junior college were in existence prior to 1929, the regional junior colleges for the most part came into existence as a result of the passage of the Junior College Act. Acts 1929, 41st Leg., p. 648, ch. 290. See, Article 2815h, Vernon's Ann.Tex.Stats. for the 1929 Act and amendments thereto. The last amendment to Article 7, Sec. 3 of the Constitution was adopted in 1926, so that the form of Article 7, Sec. 3, as it existed after 1926, is of controlling importance here.

Some difficulty of classification has arisen with reference to junior colleges and the regional districts supporting them. Undoubtedly the framers of the Texas educational system envisioned a system of schools extending from those of an elementary grade to those of a university level, that is, elementary schools, secondary schools or high schools and colleges and universities. The junior colleges, developed for the most part since 1929, are sandwiched in, so to speak, between the high schools on one hand and the colleges or universities on the other hand. In certain respects, the junior college is what its name implies, that is, a school which is above the high school level yet one whose highest grade is below the educational level required for a degree from a university. Yet, as pointed out by one of the briefs on file here, it would not be inappropriate to refer to the districts which support such schools as 'junior college districts,' 'advanced independent school districts' or 'graduate high school districts.' The point of this is that junior colleges and their districts may in some instances be regarded as colleges and in other instances as schools in the nature of advanced high schools. The Junior College Act itself makes unmerous references to independent school districts when delineating the powers and operations of a junior college district.

The Texas junior college history bears some relation to the experience of other states with secondary schools, that is, high schools or college preparatory schools.

As above indicated, Article 7, Sec. 3 of the Constitution is a rather patched up and overly cobbled enactment. In order to meet situations deemed undesirable by the people of Texas, which were pointed up by the decisions of this Court, amendments have been adopted which in turn led to further unwanted and perhaps unforeseen results. While one could wish for a clearer statement of fundamental law than that contained in the 1876 Constitution and the one hundred or so amendments thereto, we think the way to decision in this case may be made discernible by placing the constitutional provisions, the decisions of this Court and the pertinent legislative actions in their proper chronological order. As above indicated, we are not to decide this case upon the basis of the Constitution as it existed in 1876 but rather upon the Constitution as it existed in 1929 after numerous amendments had been adopted thereto.

Article 7, Sec. 3 as it appeared originally in the Constitution of 1876 provided that:

'Sec. 3. There shall be set apart annually not more than one-fourth of the general revenue of the State, and a poll tas of one dollar on all male inhabitants in this State between the ages of twenty-one and sixty years, for the benefit of the public free schools.'

This was the article of the Constitution under which the case of City of Fort Worth v. Davis, 57 Tex. 225 was decided in 1882. It should be noted that under the original Constitution, the Legislature was vested with plenary power to create or provide for the creation of school districts, or school communities as they were called at that time. 8 Gammel's Laws of the State of Texas 1035, Acts 1876, 15th Leg., Reg. Session, p. 199, ch. 120; State v. Brownson, 94 Tex. 436, 61 S.W. 114. It is inferable that during this period in the history of the development of the Texas educational system, schools within the cities and towns were administered for the most part by municipal authorities while the rural schools were controlled by the trustees of the 'school communities.'

As a result of the decision in Fort Worth v. Davis, the article was amended in 1883 to avoid the restrictive interpretation of that case insofar as the power of a school district to levy a maintenance tex was concerned. The article as amended read as follows:

'Sec. 3. One-fourth of the revenue derived from the state occupation taxes, and a poll tax of one dollar on every male inhabitant of this state, between the ages of twenty-one and sixty years shall be set apart annually for the benefit of the public free schools, and, in addition thereto, there shall be levied and collected an annual ad valorem state tax of such an amount, not to exceed twenty cents on the one hundred dollars valuation, as, with the available school fund arising from all other sources, will be sufficient to maintain and support the public free schools of this state for a period of not less than six months in each year; and the Legislature may also provide for the formation of school districts within all or any of the counties of this...