134 Ky. 488 | Ky. Ct. App. | 1909
Opinion op the court by
— Affirming.
By an act of the Legislature of 1908, approved March 24,1908 (Acts 1908, p. 156, c. 61), the minimum levy of taxes for school purposes in cities of the first class was fixed at 36 cents on the $100. This appeal involves the constitutionality of that act.
The question arises out of these facts: The Louisville School Board, an administrative agency created by the Legislature by the act of July 1, 1893 (Laws 1891-93, p. 1307, c. 244, Sec. 166), having control of the public schools of that city, presented to the general council of Louisville their budget for the schools for the year 1909, to defray which would require the levy of at least 36 cents on the $100 worth of taxable property within the city.
The general council refused to accede to the demand made upon it by the Board of Education, not because of any error in the' estimate of that board, but solely because, so far as we can gather from the record, the council deemed it inexpedient to appropriate so much money for school purposes, in view of the other, necessary expenses to which the city was put in maintaining its local government. Appellee brought this suit for the writ of mandamus against the city and its mayor and general council. The circuit court granted the writ. The defendants appeal.
“The G-eneral Assembly shall not impose taxes for the purpose of any county, city, town or other municipal corporation, but may by general laws confer rrpon the proper authorities thereof respectively power to assess and collect such taxes.” If the maintenance of a public school is a purely municipal purpose, then the section would seem to be conclusive of the matter. But education is not a subject pertaining alone, or pertaining essentially, to a municipal corporation. Whilst public education in this country is now deemed a public duty in every state, and since before the first federation was regarded as a proper public enterprise, it has never been looked upon as being at all a matter of local concern only. On the contrary, it is regarded as an essential to the preservation of liberty — as forming one of the first duties of a democratic government. The place assigned it in the deliberate judgment of the American people is scarcely second to any. If it is essentially a prerogative of sovereignty to raise,troops in time of war, it is equally so to prepare each generation of youth to discharge the duties of citizenship in time of peace and war. Upon preparation of the youger generations for civic duties depends the perpetuity of this government. The power to levy taxes is an essential attribute of- the sovereignty. That is so because the necessity of conducting the government requires that money be raised for the purpose by some
In this state the subject of public education has always been regarded and treated as a matter of state concern. In the last Constitution, as well as in the one preceding it, the most explicit care was evinced to promote public education as a duty of the state. Besides setting apart a very considerable capital sum as an inviolable asset of the school fund, the Constitution provides: “The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the state.” Const. Sec. 183.
In obedience to that requirement the General Assembly has provided a system of common schools, in connection with other branches of public education. The subject requires different provisions for localities differing in density of population. For rural settlements there is the district school. For villages and towns a more extended term may be had, including high schools, because the population makes it practical to do so. In cities a still more elaborate, and consequently more expensive system is set up. All have the one main essential — that they are free schools, open to all the children of proper school age residing in the locality, and affording, so long as the term lasts, equal opportunity for all to acquire the learn
It is next insisted that the statute violates subsection 15 of section 59 of the Constitution, reading: “The General Assembly shall not pass local or special acts.concerning any of the following subjects or for any of the following purposes, viz: * * * (15) To authorize or regulate the levy, the assessment or collection of taxes.” Classification is a necessary feature and power of legislation, as it is impossible for any extensive code of laws to apply to every person or subject in the state. The Constitution itself provides for the classification of the cities and town-; of the commonwealth. That fact alone establishes such classification as reasonable as to matters susceptible of treatment upon the basis of density and extent of population. The fact that only one city now belongs to the first class detracts nothing from the propriety of such allotment. Indeed, when the Constitution was adopted but one city could possibly have been included in the first class under the require
Section 181 of the Constitution requires that taxes must be uniform and assessed against all property within the territorial limits of the authority levying the tax. It is argued for appellant that, if the Legislature is levying this tax, it is not uniform upon all property within its authority, and that the city can not be said to be levying the tax, because the city is left no discretion in the matter. Treated on its broader ground, we think the section was aimed to equalize the burden of taxation upon the subjects paying it and to be benefited by it. This section is held not to be infringed in levying street improvement taxes in cities upon only parts of the city, that property particularly benefited by the improvement, all hough the authority levying the tax was co-extensive with the city and covered considerable territory and property not affected by the tax. Gray’s Limitation of the Taxing Power, Sec. 424 efc seq.; Holzhauer v. Newport, 94 .Ky. 407, 22 S. W. 752, 15 Ky. Law Rep. 188; Marshall v. Donoven, 10 Bush, 683; Smith v. Simmons, 110 S. W. 336, 33 Ky. Law Rep. 503, 129 Ky. 93.
But, if it be preferred to rest the matter upon the narrow ground — that is, whether ihe levy of the tax was made' by the municipality — we think it can be done. The Legislature may and does provide for much of the state government through agencies such
Finally, it is contended by appellant that the statute violates the spirit of local self-government which pervades our system. Not so; If it did, then the requirements of the Constitution that the Legislature should establish and maintain an efficient system of common schools was vain; for in that event all the Legislature could do would be to advise the various cities, towns and counties to maintain good schools. A city has not, under the plea of home rule, the exclusive right to do all within its territory that the state can do outside. No case has gone that far; and
Our conclusion is that the statute is a valid exercise of legislative power and discretion. The council should have levied at least the minimum rate fixed by the statute. Their refusal was a failure to obey an express requirement of law. The writ of mandamus was the proper remedy, and was correctly applied (Lexington v. Board of Education, 65 S. W. 827, 23 Ky. Law Rep. 1663), including for the year of 1909, which was manifestly intended to be embraced by the terms of the act.
Judgment affirmed.