Kinney v. Zimpleman

36 Tex. 554 | Tex. | 1872

Lead Opinion

Walker, J.

The appeal in this case is taken from a judgment of the District Court of Travis county, dissolving an injunction which restrained the defendant, G. B. Zimpleman, sheriff and ex-offioio assessor and collector of taxes for said county, from collecting what is commonly known as the one per cent, school tax.

We shall not notice, in their order, the assignments of error; but we shall consider the very important questions which are presented upon the record, and treated in the briefs as decisive of the case. It is necessary that we should give but a passing notice to the pleadings in the case; they are drawn with great professional ability and skill, and fairly present the issues of law which demand our consideration.

A question of great importance is presented in the case, which we are not called on to decide, and simply call the attention of the profession to it as a question which we believe to be open in this State. In Dodd et al. v. the City of Hartford, 25 Conn., 232, it was decided that a court of equity would not, except on the clearest grounds, interfere with the speedy collection of public taxes. And in the case of Lewis O. Wilson v. the Mayor, Aldermen, and Commonalty of the City of New York et al., 4 N. Y., E. D. Smith, 675, it was held that when no legal right exists to impose a tax, if the same be collected by distress and sale of goods, or if, upon the levying of a warrant, the tax is paid to save the property, the money may be recovered back of the body who receives it from the collector. “ Ac- “ cordingly, held, that as a party aggrieved has remedies at law, “a court acting as a court of equity has no jurisdiction to “ restrain by injunction the collection of a tax unlawfully “ assessed upon personal estate.”

The same rule has been laid down by the Supreme Court of Ohio in a number of cases.

Yet it is true that the Supreme Court of the United States have held a contrary doctrine in the case of Dows v. the City of Chicago, 11 Wallace, 108. And other respectable authorities may be found to the same point; yet a majority of the court believe that the doctrine as recognized in Connecticut, that courts of equity ought not, except upon the clearest grounds, to interfere with a speedy collection of public taxes, lays down the correct rule, and one which ought to be everywhere recognized; as great mischief to the public interests, and detriment to the public service, would doubtless grow out of a practice, if adopted by courts of equity, of interfering by injunction with the collection of the public revenue, if not governed by the strictest rules of equity practice; and it is difficult to conceive why a court of equity should interfere to redress the real or supposed wrongs of an individual to whom the courts of law are open, and who has a clear legal remedy against an officer who enforces the collection of an unconstitutional or illegal tax.

It is claimed by the appellants, that the act of the Legislature, approved April '24th, 1871, entitled “ An Act to organize “ and maintain a system of public free schools in the State of “ Texas,” actually -became a law on or about the 17th or 18th of April, 1871, and was repealed by a subsequent act of the Legislature, approved on the 22d day of April, 1871, entitled “ An Act to give effect to the several provisions of the Constitution concerning taxes.”

Admitting the chronological order of the passage of these acts to be as claimed by the appellants, then, if the latter repeals the former, it must be by implication ; for both these acts were bills which originated in the Senate, and by reference to the journal of that body it will be seen that the act passed on the 22d of April, with the Sections 8 and 30 (claimed to be the repealing sections) in it as passed, was introduced on the 2d day of February, 1871, as bill No. 94. (See Senate Journal, page 136.)

The school law was introduced on the 16th February, subsequent to the introduction of bill 94, and was numbered 166. (See Senate Journal, pp. 262 and 492 et seq.)

It cannot, then, be rationally supposed that it was intended by any part of bill 94 to repeal any provision of bill 166, the provisions of which had not yet been heard of in the Senate, and were probably yet sleeping in the brain of their author.

But, however satisfactory these facts may answer as to any intention of the Legislature tb repeal the school law, in any of its provisions, by any of the provisions of the tax law, it is nevertheless urged that the former is necessarily repealed by the implications of the latter and the irreconcilable repugnance of the two.

In the case of Cass v. Dillon, 2 Ohio State, 607, the Supreme Court of Ohio says, that repeals by implication are not to be favored, and lays down the rule, viz., that the repugnance which must cause the law to fall, must be necessary and obvious. And touching the question of the unconstitutionality of an act, that court in the same case says: “ If by any fair course of “ reasoning the law and Constitution can be reconciled, the law “ must stand.”

But the 32d Section of the act of April 22d, 1871, which reads as follows: “ All laws and parts of laws in conflict here- “ with, except such as authorize special county and other special “ taxes, shall be and are hereby repealed, saving and reserving all “ rights of the State, of the respective counties, and of the “ officer thereof under the same, the rights of the officers “ to be adjusted in conformity with the instructions to be issued “ under this act,” is certainly decisive of the intention of the Legislature to except the special taxes from the operation of the repealing clause; and we hold that the one per cent, school tax, which by the 5th Section of the school law, the directors of the school districts are authorized to levy in their respective districts, is to all intents and purposes a special tax. It is not levied as other taxes are levied, nor, when collected, does it go to the general revenue fund; but it is left to the directors, in their discretion, to levy any amount less than one per cent, on the taxable property of their districts, and the money so levied and collected should be disbursed for the sole and exclusive benefit of the several districts within which and for which it is so levied and collected.

This was obviously the intention of the Legislature, and it would be manifestly unjust to tax the property or people of one geographical subdivision of the State for the good of another, and it may be very proper here to remark, that by reference to “ Exhibit O ” of the record this appears to be the understanding of the Superintendent and Board of Education. The extract reads as follows: “ Rule 9th. The tax levied by the school “ directors of each school district of the different counties shall “ be collected by the sheriff of each county, and by him deposited with the treasurer of the board of directors, subject to “ the order of the school directors, in whose school district the “ money may be collected, on approval of said order by the Su- “ perintendent; and said money shall not be paid out by any “ treasurer, except in accordance with the rules and regulations “ of the State Board of Education.”

We are, therefore, of the opinion that the act approved April 24th, 1871, is not repealed by the act approved April 22d, 1871, though the first named act may be prior in the true date of its passage.

An act of the Legislature, approved on the 29th of November, 1871, supplemental to the general school law, provides the' manner of dividing the State into school districts, and reads as follows:

“An Act supplementary to and amendatory of an act entitled, “ ‘ An Act to organize and maintain a system of public free “ ‘ schools in the State of Texas,’ approved April 24th, “ 1871.

“ Section I.—Be it enacted by the Legislature of the State “ of Texas, that the second section of the above recited act be “ so amended as hereafter to read as follows, viz.:

“ Clause first. The Board of Education shall, upon the pas- “ sage of this act, proceed to apportion anew the territory of “ this State into convenient educational districts, not to exceed “ twelve in number; provided that nothing in this clause shall “ be construed as to prohibit said board hereafter from consoli- “ dating or otherwise changing or altering the boundaries of “ said districts for educational purposes.

“ Clause second. And as soon as the educational districts “ contemplated in the foregoing clause shall be created, it shall “ be the duty of the Superintendent of Public Instruction to “ retire or relieve from duty each supervisor of education hereto- “ fore appointed and commissioned as such; and the said Super- “ intendent is hereby authorized to appoint, with the approval “ of the Governor, for each newly created district, one super- “ visor of education, who shall hold his office for the term of “ four years from the date of his commission, unless sooner “ removed by said Superintendent for cause, on the approval “ of the Governor; and the supervisor may act as examiner of “ teachers.

“ Clause third. And each supervisor so appointed shall re- “ ceive for his services, out of any moneys belonging to the “ available school fund not otherwise appropriated, first, a salary “ of eighteen hundred dollars per annum; second, all expenses “ for postage; and third, all travel ing expenses necessarily in- “ curred while employed in the actual discharge of the duties of “ his office; provided, that the amount of the above mentioned “ expenses shall not exceed the sum of two hundred dollars, on “ voucher to be approved by the Superintendent of Public In- “ struction, during any one scholastic year.

“ Clause fourth. And the supervisors herein provided for “ shall be empowered to lay off and subdivide the counties in “ the territory under their jurisdiction into convenient school “ districts; and they shall also appoint, on the approval of the “ Superintendent of Public Instruction, five directors for each “ school district; but the authority of the said supervisors in “ the management, control, and oversight of their respective “ districts, shall be subject to the control, direction, and re- “ vision of the said Superintendent; and it shall be the further “ duty of the said supervisors to enforce, in their respective “ districts, all rules and regulations adopted by the Board of “ Education for the government of the public free schools in “ this State.

“ Section II.—Be it further enacted, that the unexpended “ balance of the deficiency appropriation for the scholastic year “ ending on the 31st day of August, 1871, be, and the “ same is hereby added to and made a part of the appropriation “ for the scholastic year ending 31st day of August, 1871, “ and to be apportioned as required by Section 1 of the “ above cited act.

“ Sectioe III.—That the Superintendent of Public Instruc- “ tion, with the approval of the Governor, shall make requisi- “ tion from time to time for such sums of money as may be “ necessary to pay the teachers and employes of the Bureau of “ Education, out of any funds in the Treasury appropriated “ for that purpose, which shall be sufficient authority for the “ Comptroller to issue a warrant therefor, and the Superin- “ tendent of Public Instruction shall,- on disbursing each req- “ uisition, file his vouchers with the Comptroller of Public “ Accounts.

“ Section IV.—That this act take effect and be in force “ from and after its passage.

“ Approved ¡November 29th, 1871.”

It is urged against the law, that the Constitution is violated in the mode of districting the State for school purposes, inasmuch as the authority is delegated to the Board of Education, and that they performed the duties assigned them in violation of the 30th Section of the 3d Article of the Constitution.

This clause of the Constitution has excited much attention; we think it is not difficult to understand.

An office, says Bouvier, is a right to exercise a public function or employment, and take the fees belonging to it. (See also 3 Serg. & R., 149.)

An appointment or employment, the exercise of a trust or duty, may be assigned without fees, emoluments, or perquisites, by the Legislature to any constitutional officer as a part of his official duty, without making him the incumbent of two offices. The Legislature may direct that the Governor, the Attorney-General, Superintendent of Schools, or any other officer of the State government, shall discharge other duties to the public than those ordinarily belonging to the functions of his office; and they may so discharge such duties without fees or emoluments, and not violate the 30th Section of the 3d Article of the Constitution.

We believe it will be found that where any individual is prohibited from holding more than one agency, appointment of trust or profit, or exercising the duties of what might be considered two offices, they must be such as have salaries, emoluments, or perquisites attached to them. We do not, therefore, consider that the Governor, Attorney-General, and Superintendent are inhibited, whilst holding their respective offices, from, discharging the duties which the Legislature have imposed upon, them as a Board of Education.

That the Legislature may delegate the power, or that they may employ other agencies or persons, to district the State for educational purposes, we entertain no doubt. The maxim delegata potestas non potest delegare, does not apply here.

The Legislature enacts laws to be administered by the judicial, executive, and ministerial officers; and in so far they delegate their power to these officers—a power directly derived through them from the people, and more conveniently exercised, than it could be by the Legislature itself, immediately. Indeed, it would be impracticable in many instances, without, these mediate agencies, for the Legislature to carry out the objects and purposes of the law. In some cases it would be impossible, and we here employ the maxim Lex non cogii ad impossibilia. These principles are familiar to the theory and practical working of every constitutional form of government.

■ But we come now to consider by far the more difficult problem presented for our solution in this case.

It is evident that the framers of our Constitution regarded it as one of the highest and most sacred duties incumbent upon their body, to make plenary provision for a system of common schools, to be inaugurated throughout the State by the Legislature, under wise and wholesome forms of law; and so ample is the provision, and so honorable to the body of men who devised it, that we here insert the whole article of the Constitution bearing upon this case, as part of this opinion, together with an appropriate extract from the act of Congress approved March 30th, 1870, admitting the State of Texas to representation in the national Congress.

The extracts are as follows:

“'An Act to admit the State of Texas to Representation in the

“ Congress of the United States.

“ That the Constitution of Texas shall never be so amended “ or changed as to deprive any citizen or class of citizens of the “ United States of the school rights and privileges secured by “ the Constitution of said State.

“ Approved March 30, 1870.”

Extract from Constitution of the State of Texas.

“ Article IX.—Public Schools.

“ Section I.—It shall be the duty of the Legislature of this “State to'make suitable provisions for the support and main- “ tenance of a system of public free schools, for the gratuitous “instruction of all the inhabitants of this State, between the “ ages of six and eighteen years.

“ Section II.—There shall be a Superintendant of Public “ Instruction who, after the first term of office, shall be elected “by the people; the first term of office shall be filled by ap- “ pointment of the Governor, by and with the advice and con- “ sent of the Senate. The Superintendent shall hold his office “for the term of four years. He shall receive an annual salary “ of two thousand five hundred dollars, until otherwise provided “by law. In case of vacancy in the office of the Superintend- “ ent, it shall be filled by appointment of the Governor, until “ the next general election.

“ Section III.—The Superintendent shall have the supervis“ion of the public free schools of the State, and shall perform “ such other duties concerning public instruction as the Legisla- “ ture may direct. The Legislature may lay off the State into “ convenient school districts, and provide for the formation of “ a board of school directors in each district. It may give the “ district boards such legislative powers, in regard to the schools, •“ school-houses, and school fund of the district, as may be “ deemed necessary and proper. It shall be the duty of the “ Superintendent of Public Instruction to recommend to the “ Legislature such provisions of law as maybe found necessary, “ in the progress of time, to the establishment and perfection “of a complete system of education, adapted to the circum- “ stances and wants of the people of this State. He shall, “at each session of the Legislature, furnish that body with “a complete report of all the free schools in the State, “ giving an account of the condition of the same, and the “ progress of education within the State. Whenever required “ by either House of the Legislature, it shall be his duty to “ furnish all information called for, in relation to public “ schools.

“ Section IV.—The Legislature shall establish a uniform sys- “ tern of public free schools throughout the State.

“ Section V.—The Legislature, at its first session (or as soon “ thereafter as may be possible), shall pass such laws as will re- “ quire the attendance on the public free schools of the State “ of all the scholastic population thereof, for the period of at “ least four months of each and every year; provided, that “ when any of the scholastic inhabitants may be shown to have “ received regular instruction, for said period of time in each ' “ and every year, from any private teacher having a proper cer- “ tificate of competency, this shall exempt them from the opera- “ tion of the laws contemplated by this section.

“ Section VI.—As a basis for the establishment and endow- “ ment of said public free schools, all the funds, lands, and “ other property heretofore set apart and appropriated, or that “ may hereafter be set apart and appropriated, for the support “ and maintenance of public schools, shall constitute the public “ school fund. And all sums of money that may come to this “ State hereafter, from the sale of any portion of the public do- “ main of the State of Texas, shall also constitute a part of the “public school fund. And the Legislature shall appropriate all “ the proceeds resulting from sales of public lands of this State “ to such public school fund. And the Legislature shall set “ apart, for the benefit of public schools, one-fourth of the an'-. “ nual revenue derivable from general taxation; and shall also “ cause to be levied and collected, an annual poll tax of one “ dollar, on all male persons in this State, between the ages of “ twenty-one and sixty years, for the benefit of public schools. “ And said fund, and the income derived therefrom, and the “ taxes herein provided for school purposes, shall be a perpetual “ fund, to be applied, as needed, exclusively for the education “ of all the scholastic inhabitants of this State; and no law “ shall ever be made appropriating such fund for any other use “ or purpose whatever.

“ Section VII.—The Legislature shall, if necessary, in addi- “ tion to the income derived from the public school fund, and from the taxes for school purposes provided for in the fore- “ going section, provide for the raising of such amount by tax- “ ation, in the several school districts in the State, as will be “ necessary to provide the necessary school-houses in each district, “ and insure the education of all the scholastic inhabitants of “ the several districts.

“ Section VIII.—The public lands heretofore given to coun- “ ties shall be under the control of the Legislature, and may be “sold under such regulations as the Legislature may prescribe; “ and in such case the proceeds of the same shall be added to “ the public school fund.

“ Section IX.—The Legislature shall, at its first session (and “ from time to time thereafter, as maybe found necessary), pro- “ vide all needful rules and regulations for the purpose of car- “ rying into effect the provisions of this article. It is made the “ imperative duty of the Legislature to see to it, that all the “ children in the State, within the scholastic age, are, without “ delay, provided with ample means of education. The Legis- “ lature shall annually appropriate for school purposes, and to “ be equally distributed among all the scholastic population of “the State, the interest accruing on the school fund, and “the income derived from taxation for school purposes; and “ shall, from time to time, as may be necessary, invest the prin- ■ “ cipal of the school fund in the bonds of the United States “ government, and in no other security.”

The very able argument of appellants’ counsel strikes at the constitutionality of the one per cent, tax, upon the ground that the taxing power is an attribute of sovereignty delegated by the people to the Legislature, and incapable of being delegated by that body to the school directors. This argument might have great force in a given case, but the people of a State, in the enactment of their organic law, are not limited in the distribution of governmental powers, nor are they bound by the maxim delegata potestas non potest delegare. They may delegate the sovereign power of taxation to the Legislature, and by special provision authorize the Legislature to re-delegate that power to any agent, body politic, or corporation, named in the Constitution itself.

The 3d Section of the 9th Article of the Constitution especially provides, that the Legislature may give the district boards such legislative powers in regard to schools, school-houses, and school fund of the districts, as may be deemed necessary and proper. And it does appear to us that when these three objects are embraced, the whole ground assumed by the act of April 24th, 1871, is covered.

The taxing power is a legislative power, and as such, under this clause of the Constitution, may be delegated to these district boards; and inasmuch as they are recognized by the Constitution, we can see no difference in this behalf between them and municipal corporations, or any corporate bodies, to whom it is admitted the taxing power, or power under the law to make assessments, may be delegated.

But we do not consider the constitutionality of the school law as dependent upon this construction of our Constitution. The taxing power and the power of assessment should be carefully discriminated, and we do not think that the school law contemplates any thing beyond a power of assessment in the district boards. In the case of Hill v. Higdon, 5th Ohio State R., 243, the Supreme Court of that State, considering a question in many respects analogous to the one now before us, say: “ The “ popular as well as legal signification of the term assessment “ has always indicated those special and local impositions upon “ property in the immediate vicinity of an improved street, “ which were necessary to pay for the improvement, and laid “ with reference to the special benefit which such property “ derived from the expenditure of the money.

“ And the fact that the Legislature may restrict these corpo- “ rations in the exercise of this power, affords the strongest pos- “ sible implication of the existence of the power.” (1st Ohio State, 77, 126, 149.)

In the case before us the Legislature have restricted the assessment to one per cent.; it is local, and intended for the benefit of those upon whom it is assessed.

The best lexicographers of our language tell us that the terms “levy” and “assessment” in law mean the same thing; to assess this tax then was not an exercise of the taxing power. It is only a ministerial act, authorized by the Legislature, to whom the taxing power ordinarily and appropriately belongs.

We may well use the language of the Supreme Court of the State of Ohio employed in the case already referred to, for the purpose of more clearly stating our meaning: “ It is our duty “ to give such a construction to the Constitution as will make “ it consistent with itself, and will harmonize and give effect to “ all its various provisions. To do this, we have only to suppose “ that the convention’ used language with reference to its popu- “ lar and received signification, and applied it as it had been “ practically applied for a long series of years.

“ That where taxation is spoken of in the 2d Section of the “ 12th Article, reference is made to the general burdens im- “ posed for the purpose of supporting the government, and the “ revenue raised expended for the equal benefit of the public at “large; while the power of assessment referred to in the 6th “ Section of the 13th Article, although resting upon the taxing “ power, was intended to describe a distinct and well-known “ mode of laying a local burden upon particular property, with “ reference to the peculiar and special benefit derived to such “ property from the expenditure of the money.”

That our opinion may be fully understood we make the law under consideration an exhibit herein, which is as follows: “ An Act to Organize and Maintain a System of Public Free

“ Schools in the State of Texas.

“ Section I.—Be it enacted by the Legislature of the State of “ Texas, that the Superintendent of Public Instruction shall “ have supervisory control of all the public free schools in this “ State, and shall receive a salary of three thousand dollars per “ annum. He shall keep a record of the number of children in “ each county, of scholastic age, from six to eighteen years of “ age; apportion the money of the school fund of the State to the “ several counties according to the scholastic population. He “ shall keep a correct account of all moneys of the school fund “ and matters appertaining thereto, and report to the Governor “ annually, at the close of the fiscal year, the condition of the “ school fund, distributions of moneys, and such suggestions in “ regard to the school system as may be deemed advisable, “ The fiscal scholastic year shall be the same as the fiscal year of “ the Treasury. He shall prescribe and furnish all necessary forms “ for teachers and all other subordinate officers of the Bureau of “ Education, and he shall direct the manner and times of male- “ ing reports by those officers and persons, and shall examine “ and approve all accounts for compensation of teachers and em- “ ployes of the Bureau of Education, and for school-books and “ apparatus purchased for public schools before the same shall “ be paid at the. Treasury.

“ Section II.—The Superintendent of Public Instruction, “ with the approval of the Governor, shall appoint for each j udi- “ cial district of this State, one supervisor of education for such “judicial district, who shall hold his office for four years, unless “ sooner removed. Each supervisor of education shall receive, “ as compensation, the sum of five dollars per day for the time “ actually employed in attending to the duties of his office; pro- “ vided, that the total to be paid to any supervisor during any one “ year shall not exceed the sum of twelve hundred dollars. The “ supervisors of education may he removed by the S'uperintend- “ ent of Public Instruction, on the approval of the Governor, “for incompetency, malfeasance, or neglect of duty. The super- “ visors of education shall be empowered to lay off and subdivide the counties of their respective judicial districts into “ school districts, and shall be empowered to appoint five school “ directors for each school district; but the authority of the “ supervisors in these respects shall be subject to the control and “ revision of the Superintendent of Public Instruction. It shall “ be the duty of the supervisors to enforce, in their respective “ districts, all rules and regulations adopted by the Board of “ Education for the government of public free schools in this “ State.

“ Section III.—The Superintendent of Public Instruction, “ with the Governor and the Attorney-General, shall form a Board “ of Education for the State. It shall be the duty of this board, “ subject to the Constitution and laws of this State, to adopt all “ necessary rules and regulations for the establishment and pro- “ motion of public schools ; to provide for the examination and “ appointment of teachers, and to fix their compensation; to “ define the course of studies in the public schools, and direct “ the class and kind of apparatus and books to be used therein; “ to prescribe the duties of the boards of directors, and generally “ do all things not inconsistent with the Constitution and laws of “ this State necessary to establish and maintain a system of pub- “ lie free schools; provided, that the Board of Education for “ this State shall prescribe no rule or regulation that will prevent “ the directors of the school districts from making any separation “ of the students that the peace and success of the school and “ the good of the whole may require.

“ Section IY.—The Board of Education for the State shall re- “ port for action of the Legislature, from time to time, such “ amendments of the school laws of this State as may be found “ necessary, stating in their report the facts and reasons which, in' ‘ their opinion, render necessary such proposed amendments.

“ Section Y.—The available school fund, liable to appropria- “ tion for the support of public schools, is hereby declared to be “ all interest which has accrued, or may hereafter accrue, to the “ school fund from railroads or otherwise, since the 30th day “of March, 1870, one-fourth of all the ad valorem, and occupa- “ tion taxes assessed since that date, and such other taxes as “ have been or may be provided by law for the support of pub- “ lie schools. Accounts against this available school fund shall “ be paid out of any part of it that may be in the Treasury, on “ appropriation therefor by the Legislature. The directors of “ each school district shall have authority to levy a tax of not “ exceeding one per cent., for the purpose of building school- “ houses and maintaining schools in their respective school dis- “ tricts; and the manner of the collection and disbursement of “ this tax shall be prescribed by the Board of Education for the “ State.

“ Section YI.—The board of school directors shall require the “ attendance on the public schools of their respective districts, “ of all the scholastic population thereof, for a term of at least “ four months of each and every year ; and should any of said “ scholastic population neglect or refuse to attend said schools, “ each and every parent or guardian of such child or ward neg- “ lecting or refusing to attend shall be deemed guilty of a mis- “ demeanor, and upon trial and conviction thereof before any “ court of competent jurisdiction, shall be fined in a sum not to “ exceed twenty-five dollars for each and every such offense, and “ shall pay the costs of the prosecution; and all moneys collect- “ ed for fines, under the provisions of this section, shall be paid “ into and become a part of the public school fund of the dis- “ trict where the penalty was incurred; provided, that when “ any child or ward of scholastic age may be shown to have re- “ ceived regular instruction from any private teacher having a “ proper certificate of competency, or when it may be shown “ that said child or ward was prevented by ill health from at- “ tending school, or that there was no public school within three “ miles of the residence of said child or ward, or that said ab- “ sence was caused by reason of danger from hostile Indians— “ this shall exempt them from the operation of the penalty con- “ teinplated by this section; and further provided, that nothing “ in this act shall be so construed as to compel the attendance of “ a child under ten years of age on the public free schools, when “ there is no school established within one mile of the residence “ of said child or ward.

“ Section YII.—That all laws and parts of laws not consistent “ with this act be, and the same are hereby repealed, and that “ this act take effect and be in force from and after its passage.

“ Approved April 24, 1871.”

It is not for us to say whether the provisions of this law have been carefully considered by the Legislature, or whether they are wise or unwise. The responsibility of the law, if unwise, rests not upon us, nor are we entitled to the honor which it may confer upon its authors. It is for us to say whether it is in accordance with the principles and provisions of our Constitution, and whether its details can be carried out.

The Constitution confers upon the Legislature the power, and imperatively requires it as a duty, that a system of common schools shall be organized throughout the State. At least the elements of an education are placed within the reach of all classes of the people, and we believe the laws under consideration to be in harmony with the Constitution, and that they should be carried out with the utmost strictness and good faith.

The judgment of the District Court is therefore affirmed.

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Concurrence Opinion

Evans, P. J.

This case is of such importance that while I concur in the judgment that is rendered, and in the general views presented in the opinion of the court, I deem it proper to state, with some distinctness, my own views upon the subject involved; and I am the more inclined to do this because the opinion is entertained by perhaps a majority of the members of the bar throughout the State, that the act of the Legislature, by authority of which the one per cent, school tax is collected, is not warranted by the Constitution.

The act in question is entitled “An Act to Organize and “ Maintain a System of Public Free Schools.” The 5th Section of the act provides that “the school directors of each school “ district shall have authority to levy a tax of not exceeding one “ per cent., for the purpose of building school-houses and main- “ tabling schools in their respective school districts.” The authority for the delegation of the taxing power given by this section to the boards of school directors, is to be found in Section 3, Article 9, of the Constitution. It is there provided that “ The Legislature may lay off the State into' convenient school “ districts, and provide for the formation of a board of school “ directors in each district. It may give the district boards such “ legislative powers in regard to the schools, school-houses and “ school fund of the district, as may be deemed necessary and “ proper.”

These boards of school directors, when formed, become quasi corporations; and there can be no doubt that it was the purpose of the framers of the Constitution to empower the Legislature to clothe these boards with full powers in relation to the subjects enumerated. It would be a very narrow construction of the language used in the 3d Section of the 9th Article of the Constitution, to say that the Legislature was not authorized to confer upon these boards the power of taxation—a construction at variance with the general scope of that Article of the Constitution.

I do not feel that my official position imposes upon me any obligation to ignore the fact that there is a wide-spread dissatisfaction throughout the State with our public school system; and that this dissatisfaction is not confined exclusively to any political party. But I am of opinion that the criticism of the system that is indulged in both by the people and the members of the legal profession, should be directed against the Constitution rather than the acts of the Legislature passed in pursuance of its spirit. A careful consideration of the 9th Article of the Constitution will disclose the fact, that its framers contemplated a gigantic system of compulsory education, without parallel in the American Union, or perhaps in the world, in the extent of the revenues to he raised for its support, and in the amplitude and splendor of its machinery and appointments.

Section 1 of the Article provides that “ It shall he the duty “ of the Legislature of this State, to make suitable provisions “ for the support and maintenance of a system of public free “ schools, for the gratuitous instruction of all the inhabitants of “ this State between the ages of six and eighteen years.”

The scholastic age is thus made to cover a period of twelve years.

Section 5 of the Article provides that “ The Legislature, at “ its first session (or as soon thereafter as may be possible), shall “ pass such laws as will require the attendance on the public “ free schools of all the scholastic population thereof, for the “ period of at least four months of each and every year: pro- “ vided that, when any of the scholastic inhabitants may be “ shown to have received regular instruction for said period of “ time in each and every year, from any private teacher having “ a proper certificate of competency, this shall exempt them “ from the operation of the laws contemplated by this seer “ tion.”

The accomplished young lady who returns at the age of sixteen, with her diploma, from the best school of the country, to her home in Texas, finds herself still a school-girl, required to go to a public school four months in each year, or receive regular instruction from a private teacher, having a proper certificate of competency, for the. same length of time, until she is eighteen years of age.

Section 2 of the Article of the Constitution referred to, provides for the appointment of a Superintendent of Public Instruction ; and Section 3 provides that this officer “ shall reo- “ commend to the Legislature such provisions of law as may be “found necessary, in the progress of time, to the establishment “ and perfection of a complete system of education, adapted to “the circumstances and wants of the people of this State.” The establishment and perfection of a complete system of education, involving the compulsory attendance of the children' of the State upon the schools, for at least four months in ¿very year, for twelve years, are the leading features of this Article of the Constitution. A degree of intellectual cultivation and development is aimed at which will make high-schools, colleges, and universities a necessary part of the system.

A large school fund is provided. Section 6 of the Article is as follows: “Asa basis for the establishment and endowment “of said public free schools, all the funds, lands, and other “ property heretofore set apart and appropriated, or that may “'hereafter be set apart and appropriated for the support and “ maintenance of public schools, shall constitute the public “ school fund. And all sums of money that may come to this “ State hereafter, from the sale of any portion of the public do“main of the State of Texas, shall also constitute a part of the “ public school fund; and the Legislature shall appropriate all “the proceeds resulting from sales of public lands of the State, to “ such public school fund; and the Legislature shall set apart, “for the benefit of public schools, one-fourth of the annual “revenue derivable from general taxation; and shall also cause “ to be levied and collected an annual poll tax of one dollar, on “ all male persons in this State, between the ages of twenty-one “ and sixty years, for the benefit of public schools. And the “ said fund, and the income derived therefrom, and the taxes “ herein provided for school purposes, shall be a perpetual fund, “ to be applied as needed, exclusively for the education of all “ the scholastic inhabitants of this State, and no law shall ever “ be made, appropriating such fund for any other use or purpose “ whatever.”

Section 7 provides, that “ the Legislature shall, if necessary, “ in addition to the income derived from the public school fund, “ and from the taxes for school purposes provided for in the “ foregoing section, provide for the raising of such amount by “ taxation, in the several school districts in the State, as will be “ necessary to provide the necessary school-houses in each dis- “ trict, and insure the education of all the scholastic inhabitants “ of the several districts.’’

This section gives a power of taxation which is by no means exhausted by the act of the Legislature authorizing the one per cent. tax. The power of taxation is commensurate with the magnitude of this scheme of education.

And the fact must not be overlooked that the framers of the Constitution manifested an active solicitude, that those of the scholastic age who had never enjoyed any of the advantages of education, should receive instruction as soon as possible.

Section 9, Article 9, of the Constitution, contains the following injunction to the Legislature: “It is made the imperative “ duty of the Legislature to see to it that all the children in the “ State, within the scholastic age, are without delay provided “ with ample means of education.” It was intended especially to benefit those who had grown up in slavery and ignorance, and who were approaching the age of eighteen years, after which the benefits of the schools could not be enjoyed.

Now, whether this Article of our Constitution be wise or not, whether compulsory education by the State accords with the principles of good government, it is not the province of this court to inquire. Neither courts nor legislatures, organized under the authority of the Constitution, have any discretion but to carry into effect its'several provisions.

I was a member of the convention which framed this Constitution, and presented it to the people. I did not approve of all of the provisions contained in Article 9, in relation to public schools, as the record of the convention will show. But I deemed the crisis so urgent, the necessity for a restoration of the State to constitutional relations with the Federal Union so overwhelming, that I did not feel at liberty to resist the adoption of the Constitution, because of my personal objections to its provisions.

As a member of this court, in common with my associates, I feel it to be my imperative duty to carry into effect all the provisions of the Constitution, not to evade them or construe them away. I feel at liberty, nevertheless, to say that, in my opinion, Article 9 of our Constitution is in its spirit in conflict with the true philosophy of popular or republican government.

It places it in the power of the State, by adopting a very high standard of public education, to take from the people more of their substance than is needful to the maintenance of their rights, and the promotion of their happiness and welfare. It authorizes too great an interference by the State with the divinely-appointed means for the training and elevation of the race; that means being the mysterious, but natural, powerful, and universal combination of parental affections and interest.

I only indicate my objections to the Constitution; I do not discuss them.

I think it also proper to say that if the Legislature, in attempting to carry into effect the provisions of Article 9 of the Constitution, has created a machinery inadequate to that end, and so defective as to fail in the accomplishment of the intended purpose, the legislation would be unconstitutional; and in that case, the courts ought to interfere by injunction to prevent the collection of money from the people, which cannot, for the want of efficient laws and agencies, be beneficially expended. But the record in this case does not present any question of this nature for our consideration, and when we look beyond the record to what is matter of history, we know that in some portions of the State, at least, the school system is successfully and beneficially administered.

The faults of administration, therefore, in other districts, if there be faults, are not so much chargeable to the law as to other causes.

It may be that in some portions of the State the popular prejudice is so great against the public school system, that capable and faithful agents cannot be found to administer the law. The remedy for such an evil is with the people themselves.

The successful working of any law depends at last upon the willingness of the people to cooperate with the agents of the law, in its administration. Those who are by education, by probity of character, and by permanent interest in the prosperity of the State, qualified to control the public schools, and to direct the expenditure of the school fund in such manner as to make the system conducive to the public good, cannot acquit themselves of the charge of neglect of duty, if they, out of prejudice against the public school system, permit its administration to fall into the hands of designing and incapable men.

I have said this much in the hope that it may lead to reflection.

I concur in the decision of the court.

Affirmed.

Case Details

Case Name: Kinney v. Zimpleman

Court Name: Texas Supreme Court

Date Published: Jul 1, 1872

Citation: 36 Tex. 554

Court Abbreviation: Tex.