Wilkinson v. Lord

• Decision Date: 25 September 1909
• Docket Number: 16,031
• Citation: 122 N.W. 699,85 Neb. 136
• Parties: THOMAS M. WILKINSON, APPELLANT, v. JOSHUA S. LORD, TREASURER, APPELLEE
• Court: Nebraska Supreme Court

122 N.W. 699

85 Neb. 136

THOMAS M. WILKINSON, APPELLANT, v. JOSHUA S. LORD, TREASURER, APPELLEE

No. 16,031

Supreme Court of Nebraska

September 25, 1909

APPEAL from the district court for Richardson county: LEANDER M PEMBERTON, JUDGE. Affirmed.

AFFIRMED.

A. E Gantt and Reavis & Reavis, for appellant.

R. C James, contra.

DEAN, J. ROSE, J., not sitting.

OPINION

DEAN, J.

The only question presented in this suit is the constitutionality of the free high school act of 1907. Comp. St. 1907, ch. 79, subd. 6, secs. 5-8b; laws 1907, ch. 121. The purpose of the act is to provide a four-year course of instruction at a free high school for the benefit of pupils residing in school districts which do not afford that opportunity. To make the legislative purpose effective, a properly equipped high school in any district in the county is authorized to admit such pupils from other districts in the same county, and the home district is made liable for payment of their tuition at the rate of 75 cents a week for each pupil. All districts liable for tuition are authorized to vote taxes enough to meet the obligations thus incurred, and, if they fail to do so, the school board or county superintendent of public instruction is empowered to furnish the county clerk with the data for a levy which the latter is authorized to make. Plaintiff owns 40 acres of land in school district 42, Richardson county. Three pupils residing therein are entitled to free high school instruction in another district under the provision of the free high school law. On account of their tuition the obligation of their home district is $ 81, but the tax authorized by the statute was not voted. On information furnished by the county superintendent the county clerk, to raise the sum stated, made a 15-mill levy on all the taxable property in the district containing plaintiff's 40 acres of land. Plaintiff's share of the burden is 75 cents, and he brought this suit to enjoin defendant, as treasurer of Richardson county, from collecting the tax. The suit is also brought on behalf of other taxpayers similarly situated. The district court sustained a demurrer to the petition, held the free high school act valid as against plaintiff's attack, and dismissed the action. Plaintiff appeals.

1. In addition to provisions for educating at any properly equipped high school in the county all duly qualified pupils residing in districts which have not established a four-year high school course of study, the statute declares: "Every public school district granting free public high school education to nonresident pupils under the provisions of this act shall receive the sum of seventy-five cents for each week's attendance by each nonresident pupil from the public school district in which the parent or guardian of such nonresident pupil maintains his legal residence. Such public school district is hereby made liable for the payment of such tuition." Comp. St., ch. 79, subd. 6, sec. 6. In attacking the statute from which the foregoing excerpt is taken, plaintiff argues that the legislation contravenes the following provisions of the constitution: "The legislature shall provide such revenue as may be needful, by levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property and franchises, the value to be ascertained in such manner as the legislature shall direct, and it shall have power to tax peddlers, auctioneers, brokers, hawkers, commission merchants, showmen, jugglers, inn-keepers, liquor dealers, toll bridges, ferries, insurance, telegraph and express interests or business, venders of patents, in such manner as it shall direct by general law, uniform as to the class upon which it operates." Const., art. IX, sec. 1. "The legislature shall have no power to release or discharge any county, city, township, town, or district whatever, or the inhabitants thereof, or any corporation, or the property therein, from their or its proportionate share of taxes to be levied for state purposes, or due any municipal corporation, nor shall commutation for such taxes be authorized in any form whatever." Const., art. IX, sec. 4. "The legislature may vest the corporate authorities of cities, towns and villages, with power to make local improvements by special assessment, or by special taxation of property benefited. For all other corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes, but such taxes shall be uniform in respect to persons and property within the jurisdiction of the body imposing the same." Const., art. IX, sec. 6.

Plaintiff's principal objection to the free high school act is that the arbitrary sum of 75 cents a week for the tuition of each nonresident pupil will fall below or exceed the cost of his instruction, and that in either event the enactment contravenes the foregoing constitutional provisions, to the effect that the legislature must adopt a system or revenue under which every person shall pay a tax in proportion to the value of his property; that the legislature shall have no power to release or commute taxes; and that all taxes for municipal purposes shall be uniform in respect to persons and property within the taxing district. Plaintiff reasons that tuition at the fixed rate of 75 cents a week, when excessive, will impose an unlawful burden on the district in which the pupil resides, and that it will impose a like burden on the school district wherein the nonresident pupil is instructed when it falls below the cost of his high school education. Plaintiff therefore concludes that the act cannot be enforced without violating the rule requiring uniformity in the burdens of taxation and forbidding commutation of taxes. In this position plaintiff relies on High School District v. Lancaster County, 60 Neb. 147, 82 N.W. 380. In that case the court held that the free high school act of 1899 (laws 1899, ch. 62) was void. Under the terms of section 3 thereof, the county was required to pay to certain school districts maintaining high schools tuition at the rate of 75 cents a week for each nonresident pupil. The ground on which the enactment was assailed is stated in the opinion as follows: "It is argued that inasmuch as a taxpayer inside the high school district must, under this act, pay the difference, if any, between the cost of tuition of nonresident pupils and the seventy-five cents per week allowed by section 3 of the act to be paid out of the general fund of the county, and must also pay his proportionate share of the seventy-five cents per week, with the other taxpayers of the county, in addition to bearing the whole of the expense of educating those pupils resident within the limits of the high school district, the law violates sections 1, 4 and 6 of article IX of the constitution."

What the court decided is stated in two paragraphs of the syllabus as follows:

"1. The constitution of this state requires not only that the valuation of property for taxation, but the rate as well, shall be uniform.

"2. Sections 1 and 3, ch. 62, laws 1899 (Comp. St., ch. 79, subd. 6, secs. 5 and 7), which provide that pupils residing without the limits of high school districts in the state may attend such schools free of charge to them, and that an arbitrary sum shall be paid out of the general fund of the county, as compensation to such high school district for such tuition, which sum may, in any case, fall below, or exceed, the cost of such tuition, contravene sections 1, 4 and 6, article IX of the constitution, which declare, among other things, that the legislature may provide such revenue as may be needful, by levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property and franchises; that the legislature shall have no power to release or commute taxes; and that all taxes for municipal purposes shall be uniform in respect to persons and property within the jurisdiction of the body imposing the same."

A critical examination of the opinion will show that the constitutionality of the act of 1899 was tested by two assumptions. The first was that 75 cents a week was insufficient to meet the expenses of educating a nonresident pupil. On the fact thus assumed the consequence is stated in the opinion as follows: "It is plain this difference must be made good by levying and collecting taxes on the property of the taxpayers resident in the school district, and this difference cannot be collected from taxpayers of the whole county. Then the taxpayers within the school district will pay a greater proportion of these taxes than would those residing within the county, but outside the school district, and while the valuation of the property of those within the school district and those without it might be uniform, yet the rate of taxation, for the same purpose, would be higher on the property within than upon that without the school district." The second assumption was that 75 cents a week exceeded the cost of educating a nonresident pupil. On the fact assumed the result is stated in the opinion as follows: "The excess would accrue to the high school districts, and the taxpayers thereof would profit at the expense of those outside the limits of the high school district, and, in either case, the rule of uniformity prescribed in section 6 of said article of the constitution would be violated."

What would have been the effect of the free high school act of 1899, if the court had assumed the legislature was correct in estimating the cost of educating a nonresident pupil at 75 cents a week, is nowhere stated in the opinion. In considering the bearing of the case cited on the present inquiry, it is...