Three Rivers Junior College Dist. of Poplar Bluff v. Statler, 53192

• Decision Date: 13 November 1967
• Docket Number: No. 53192,53192
• Citation: 421 S.W.2d 235
• Parties: The THREE RIVERS JUNIOR COLLEGE DISTRICT OF POPLAR BLUFF, Missouri, a body corporate and subdivision of the State of Missouri, and John Garver, William Becker, Bob Kitterman, A. S. J. Carnahan, James A. 'Bud' Holloway and Ben Bidewell, Members of and Comprising the Board of Trustees of the Three Rivers Junior College District, Relators, v. The Honorable W. O. STATLER, Judge of Circuit Court of Cape Girardeau County, Missouri, Sitting as Special Judge, Respondent.
• Court: Missouri Supreme Court

Page 235

421 S.W.2d 235

The THREE RIVERS JUNIOR COLLEGE DISTRICT OF POPLAR BLUFF Missouri, a body corporate and subdivision of the State of Missouri, and John Garver, William Becker, Bob Kitterman, A S. J. Carnahan, James A. 'Bud' Holloway and Ben Bidewell Members of and Comprising the Board of Trustees of the Three Rivers Junior College District, Relators, v. The Honorable W. O. STATLER, Judge of Circuit Court of Cape Girardeau County, Missouri, Sitting as Special Judge, Respondent.

No. 53192.

Supreme Court of Missouri, En Banc.

Nov. 13, 1967.

Rehearing Denied Dec. 11, 1967.

George B. Scott, Jr., John D. Henson, Poplar Bulff, Ziercher, tzinberg, Human & Michenfelder, Erwin Tzinberg, Robert C. Jones, Clayton, Armstrong, Teasdale, Kramer & Vaughan, Kenneth Teasdale, Bruce E. Woodruff, St. Louis, for relators.

Hendren & Andrae, John H. Hendren, Alex Bartlett, Jefferson City, Roy W. McGhee, Jr., Piedmont, John W. Belew, Doniphan, Edward M. Wetton, Van Buren, for respondent.

Norman H. Anderson, Atty. Gen., Louis C. Defeo, Jr., Asst. Atty. Gen., Jefferson City, for Missouri State Board of Education, amicus curiae.

Dietrich, Tyler, Davis, Burrell & Dicus, William J. Burrell, Clarence H. Dicus, Kansas City, for amicus curiae The Junior College District of Metropolitan Kansas City, Missouri.

Armstrong, Teasdale, Kramer & Vaughan, Kenneth Teasdale, Bruce E. Woodruff, St. Louis, Ziercher, Tzinberg, Human & Michenfelder, Erwin Tzinberg, Robert C. Jones, Clayton, for all other amici curiae.

SEILER, Judge.

Prohibition. The essential facts are not in dispute. The Three Rivers Junior College District of Poplar Bluff, Missouri, was organized in 1966, under Secs. 178.770-- 178.890, RSMo 1965 Supp., V.A.M.S. It takes in all the territory in Butler, Carter, Ripley and Wayne Counties and very small portions of Stoddard, Bollinger, Madison and Reynolds Counties. It includes all the school districts in the first four named counties, twenty-five altogether. The vote in Butler County was about 9 to 1 in favor of the organization of the district. The vote in Carter, Ripley and Wayne Counties was about 4 to 1 against the proposition. The Junior College District imposed a tax of 40 cents on the $100 assessed valuation in the district, under Sec. 178.870, RSMo 1965 Supp., V.A.M.S. Resident taxpayers in Carter, Ripley and Wayne Counties filed separate suits to enjoin their respective county clerks and collectors from extendintg the tax levy on the tax books and collecting same, on the ground that the levy was unlawful for two reasons: (1) the 40 cents levy, when added to other levies by other school districts in the respective counties and the Junior College District, exceeds the constitutional limitation on levies by school districts prescribed in Article X, Section 11(b), 1945 constitution, V.A.M.S., and (2) the Junior College District was illegally formed.

The suits were consolidated and respondent judge enjoined the defendants from extending or collecting the taxes 'for Junior College purposes in any local school district where the total levy, including the forty cent levy for Junior College district purposes exceeds the limitation set out in article X, section 11 of the Constitution of Missouri'. The order was stayed to give relators time to file a petition for writ of prohibition. We issued our provisional rule and the matter is now before us on whether to make the rule absolute or to quash it.

There can be no serious question of the power of the legislature to authorize organization of junior college districts providing instruction for high school graduates. In 1961, Laws of Missouri, 1961, pp. 357--365, RSMo 1961 Supp., Secs. 165.790--165.840, and again in 1963, when the 1961 provisions were repealed and then re-enacted in substantially the same form and language as part of a complete recodification of the school laws generally, Laws of Missouri, 1963, pp. 200--335, RSMo 1965 Supp., Secs. 178.770--178.890, V.A.M.S., the legislature provided a method for organization of junior college districts to 'provide instruction, classes, school or schools for pupils resident within the junior college district who have completed an approved high school course'. All this was at a time when it was common knowledge that the demand and the need throughout the state for higher education called for expansion of public educational facilities. The legislature evidently believed one solution was to increase the size and capabilities of the junior college system, which until then had been limited to what could be offered by local districts in conjunction with their high schools, RSMo 1959, Sec. 165.123. ¹

Article IX, Section 1(b), new in the 1945 constitution, provides that 'Specific schools for any contiguous territory may be established by law'. Counsel for respondent concede in their brief 'there can be no doubt' this provision authorizes 'the formation of * * * junior colleges serving areas of 'contiguous' territory.' Even if Article IX, Section 1(b) were not in itself sufficient authorization, we find nothing in the constitution prohibiting the legislature from authorizing the organization of junior college districts or providing for instruction for high school graduates, and it is a basic principle that the General Assembly, unless restrained by the constitution, is vested in its representative capacity with all the primary power of the people. Rathjen v. Reorganized School District R--II of Shelby County, (Mo.Sup.) 284 S.W.2d 516, 525. The general principle is that the legislature has the power to enact any law not prohibited by the federal or state constitution, State ex rel. Heimberger v. Board of Curators, 268 Mo. 598, 188 S.W. 128, 131, 133; Todd v. Reynolds, (Mo.Sup.) 199 S.W. 173, 175; City of Maryville v. Cushman, 363 Mo. 87, 249 S.W.2d 347, 350. It makes no difference that the 1945 constitution does not specifically mention junior colleges, Kansas City v. Fishman, 362 Mo. 352, 241 S.W.2d 377; City of Maryville v. Cushman, supra, and, as we say, the legislature unquestionably had the power to provide for the establishment of junior college districts.

The real question is whether the 1945 constitution prohibits the legislature from giving the junior college district power to levy a tax as provided by Sec. 178.870, RSMo 1965 Supp., V.A.M.S., the applicable part of which provides as follows:

'Any tax imposed on property subject to the taxing power of the junior college district under article X, section 11(a) of the constitution without voter approval shall not exceed * * * forty cents on the hundred dollars assessed valuation in districts having less than one hundred million dollars assessed valuation * * *'

Relators contend that under Article X, Section 11(b) ² the junior college district has the constitutional power to levy up to 65 cents on the $100 assessed valuation, except that in this particular instance, as permitted by the constitution, this has been further limited by law to 40 cents, Sec. 178.870, supra. Respondent contends, however, that relators' levy of 40 cents must be combined with the levy by local school districts within a particular geographical area where the junior college district overlies the local district to determine whether the constitutional limit has been exceeded; that when so treated the limit is plainly exceeded, as it is stipulated that each of these various school districts in the Three Rivers Junior College District of Poplar Bluff already levies a tax at least equal to that authorized by law to be levied by said separate districts without voter approval; that under Article X, Section 10(a) ³ and Section 11, taken in its entirety, the legislature is forbidden to extend authority for any ad valorem taxes not specifically provided or authorized in the constitution; that a junior college district tax is not authorized as such and a junior college district cannot go beyond what is already authorized by the constitution for schools. What it comes down to, therefore, is whether the portions of Article X, Section 11(b), which refer to school districts, mean that each school district is authorized to levy the full amount stated, even though there may be more than one layer of school districts covering a given territory, or whether all the school districts in a given area combined must stay within the limit specified. For example, if local district A is one which can levy to $1.25 without voter approval and it levies, say, $1.00 of the $1.25, can the junior college district overlying the same area levy only 25 cents, as respondent contends, or 40 cents, as relators contend? Or, using the same example, if the junior college district levies its full 40 cents, can the local district then levy only 85 cents?

Although counsel for respondent, in an interesting brief, capably argues, make various contentions, their main argument is based on the proposition that it has become firmly established in Missouri constitutional law that under Section 11(b) of Article X of the 1945 constitution and its predecessor, Section 11 of Article X of the 1875 constitution, the question of whether the constitutional limitation as to local tax livies has been exceeded must be determined not by looking at the particular levy alone, because, respondent contends the law is, the constitutional limitations do not mean each particular taxing authority can in all events levy to the full limit; rather the determination must be made by determining whether the levy in question, along with other levies for the same purposes, together exceed the limitation (respondent contending further that junior college districts and local school districts perform the same functions and purposes). In this connection, respondent's main reliance is upon three cases, State ex rel. Hirni v. Missouri Pacific Railway Co., banc, 123 Mo. 72, 27 S.W. 367; State ex rel. Burgess v. K.C., St. J. & C.B.R. Co., banc, 145 Mo. 596, 47 S.W. 500, and State...