60 Neb. 147 | Neb. | 1900
Tbis suit was brought in tbe district court of Lancaster county to test tbe constitutionality of sections 1 and 3, chapter 62, of an act of tbe legislature approved April 1, 1899, entitled, “An act to provide free attendance at public high schools of non-resident pupils; to provide for tbe expense thereof, and to amend section 3 of subdivision 6, sections 2 and 7 of subdivision 14, and 2 of subdivision 17, chapter 79, Compiled Statutes of Nebraska for 1897, and to repeal said original sections now existing,” Session Laws 1899, cb. 62; Compiled Statutes, cb. 79, subdivision 6. Tbe sections mentioned are as1 follows:
“Sec. 1, That all regularly organized public high
“Sec. 3. The school board of each school district of this state whose high school is attended by pupils under the provisions of this act, shall, at the close of each school year*, report in such form as the state superintendent may prescribe, to the county board of each county in which such pupils are residents, the number of pupils attending such high school from said county and the length of time of attendance of each pupil in weeks as hereinafter specified, and said county board shall, at the first regular meeting after the filing of such report, allow said district the sum of seventy-five cents for each pupil reported for each week during any part of which said pupil shall have been in attendance, and order a warrant drawn on the general fund of said county in favor of said school board for such sum, and the teacher’s register shall be prima facie evidence of attendance of pupils set forth in such claim.”
Under this act, High School District No. 137, of Have-lock, Nebraska, filed a petition in the district court of Lancaster county, on appeal from the disallowance of its
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 non-resident 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 section 1, 4 and 6 of article 9 of the constitution. Said sections are as follows:
“Sec. 1. 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.
“Sec. 4. 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.
“Sec, 6, The legislature may vest the corporate author
Before entering at large upon the discussion of the questions presented by the record, we would say that it does not appear to the court that the constitutional objections urged against this act are in any wise mitigated by the provision in section 3 thereof which grants to the school district, as compensation for the tuition of such non-resident pupils, the fixed and arbitrary sum therein named. Such sum may fall below, or exceed, the cost of such tuition, and is therefore not a factor tending to mitigate or off-set any objections that are raised in the case. So far as it affects the question, the act may have as well provided that such tuition might be without cost to a taxpayer resident outside such school districts. An act providing that non-resident pupils should be taught free of cost to taxpayers outside the limits of the district would, in our opinion, violate section 4 of article 9 of the constitution, for it would, in effect, release from their, proportionate share of the taxes necessary to pay the cost of tuition of such non-resident pupils all portions of the county lying outside the limits of such high school district, and would be taxing one portion of a county for the benefit of another portion. Town of Belle Point v. Pence, 17 S. W. Rep. [Ky.], 197.
We will now discuss the constitutional questions'thus involved, keeping in view the oft repeated principle of this court that the judiciary will not declare an act of the legislature unconstitutional unless it is clear that such act is inhibited by the fundamental law. State v. Poynter, 59 Nebr., 417, and cases cited. It will be observed that section 1 of the constitution, quoted, prescribes among other things, substantially, that the legislature shall provide
It is argued that section 1, of the article of the constitution under discussion, relates to uniformity of valuation only, and not .to uniformity of rate of taxation. If that be true, then the provisions confer a barren right only, for the legislature could, under such construction, authorize municipal corporations to levy a higher rate of tax for a given purpose upon one subdivision of the corporation and a lower rate on other subdivisions, whereby some of the subdivisions, while their property might be uniform in valuation with all other subdivisions, would yet pay a much greater proportion of the taxes so levied.' We are not disposed to so construe this section, but believe that it was intended, particularly when construed in connection with section 6, that for the same municipal purposes, the rate, as well as the valuation, should be uniform, and that it is not within the province of the legislature to evade the inhibition either directly or indirectly. Cooley, Taxation [1st ed.], 133. The high school district and all other portions of the country are, for the purposes of this act, an integral whole, such districts being a portion thereof, and giving ■ effect to either of the assumptions above made, we would say that it clearly comes within the constitutional inhibitions named.
We quite agree with counsel for plaintiff that, under this act, the county is the proper unit of taxation; but we have already shown that, in event the cost of tuition should exceed or fall below the amount provided by section 3 of the act to be raised by taxing the property of the whole county, it would indirectly violate the rule of uniformity prescribed in section 6 of the article of the constitution named. It would also violate section.! of said article, as an advantage would accrue to the taxpayers resident in the one or the other of the two portions of the county affected thereby, and it would clearly be a commutation of the taxes to be paid by the taxpayers resident in the one or the other of the two localities. It
It is not deemed necessary to consider whether the fact that under this act, the taxpayers of such districts are compelled to pay the whole of the expense of educating pupils resident in such district and in addition thereto the proportion of the expense of educating non-resident, pupils, affects the question of the constitutionality of the act; for, in our view, the act contains sufficient objections outside of this to render it invalid, and a discussion of this question would seem unnecessary.. It is not doubted that, in a proper case, double taxation may be constitutional, and that taxation of overlying districts may also, in a proper case, be unobjectionable, so far as constitutional provisions are concerned; but it is not deemed necessary to enter into a discussion of this question at this time.
Affirmed.