194 P. 1030 | Cal. | 1920
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *493 This is an application for a writ of mandate to require the respondents, the state board of education and the state superintendent of instruction, to issue a list of high school text-books in conformity to the requirements of section 1750 of the Political Code.
The only question presented is as to whether said section of the Political Code has been repealed and a different procedure substituted by the act of the legislature entitled, "An act to provide for the adoption of text-books for use in the public high schools of the state and for furnishing text-books for the use of pupils of such schools," approved May 18, 1917, referred to as the Free Text-book Act (Stats. 1917, p. 729). It seems to be conceded by petitioners that their right to the relief demanded depends upon a showing that the last cited act is invalid and inoperative.
Petitioner concisely states its position in the following words: "If the Free Text-book Act contains provisions that conflict with this section (Pol. Code, sec. 1750), and therefore in form repeals the same, the repeal is void, since the repealing statute is unconstitutional. If, on the other hand, the provisions of the two statutes are not inconsistent, the Political Code section is likewise in exclusive force and effect, since the other statute is unconstitutional."
Two grounds of unconstitutionality are relied on: First, that there is no authority under the constitution of California for providing free text-books to high school pupils; and, second, that the act in question is violative of section 12 of article XI of the constitution, in that it is an attempt to impose taxes upon the high school districts by direct legislative authority and without the interposition of the corporate *494 officers in whom the power to assess and collect local taxes is vested.
The obnoxious portions of said act are contained in sections 1 and 2 thereof, which are as follows:
"Section 1. The high school board of each and every high school district shall adopt text-books for use in such district from a list prescribed by the state board of education. Such list shall include text-books in such high school subjects as in the judgment of the state board of education require the use of text-books; provided, that separate classics in English and modern languages need not be listed. The high school board of each and every high school district may purchase text-books for the use of pupils enrolled in the high schools of such district, which text-books shall at all times be and remain the property of such district, to be supplied to the pupils thereof for use without charge, or at an annual rental, payable in advance, which shall not exceed three dollars for all text-books required by any pupil during any school year;provided, that after July 1, 1920, text-books shall be so supplied to pupils of the high schools without charge. Whenever a majority of the heads of families or a majority of the electors in any high school district shall petition in writing the high school board to furnish text-books free for the use of the pupils enrolled in such high school district, it shall thereafter be the duty of the high school board to furnish such text-books free for the use of such pupils. The high school board may pay for text-books furnished in accordance with the provisions of this act, out of the special fund of such high school district. All moneys collected for rental of text-books shall be deposited in the county treasury to the credit of such high school district within thirty days after collection.
"Sec. 2. Whenever the high school board of any high school district purchases text-books for the use of pupils residing in portions of the county not included in any high school district and attending the high school of such district, and furnishes text-books free for the use of such pupils, the board may on or before August first of each year file with the county superintendent of schools of the county in which such pupils reside, a list of such pupils and an itemized statement of the amount expended for text-books for their use during the preceding school year. The county superintendent *495 of schools shall include such amount in his estimate of the county high school fund required, and the board of supervisors shall include the amount in levying the county high school fund. Before the county superintendent of schools shall apportion any of the county high school fund on average daily attendance, he shall transfer from said fund to the fund of each of the several high school districts of the county, or draw a warrant in favor of the board of trustees of such high school district, for the amount claimed by each on account of text-books furnished free for the use of pupils residing in portions of the county not included in any high school district, and attending such high school."
It may be conceded that there is no specific authority in the constitution for furnishing free text-books to pupils of high schools. Section 7 of article IX of the constitution provides for the adoption of a uniform system of text-books for use in the day and evening elementary schools throughout the state, and directs that they "shall be furnished and distributed by the state free of cost or any charge whatever, to all children attending the day and evening elementary schools of the state."
[1] High schools are not a part of the elementary school system of the state. Section 6 of article IX of the constitution provides that "the public school system shall include day and evening elementary schools, and such day and evening secondary schools, normal schools, and technical schools as may be established by the legislature"; and in providing such secondary schools the legislature has declared (Pol. Code, sec. 1720) that "the secondary schools of the state shall be known and designated as high schools and technical schools and junior colleges."
[2] While it is thus apparent that no direct constitutional provision has been made for free text-books in high schools, and that the free text-book provision of section 7 of article IX only applies to elementary schools, no good reason has been suggested why any further constitutional authority should be needed for supplying free text-books to pupils in the high schools at the discretion of the legislature than the general powers granted by the constitution under which the high school system itself has been created, operated, and maintained. Section 5 of article IX of the constitution directs that the legislature "shall provide for a system of *496 common schools, by which a free school shall be kept up and supported in each district at least six months in every year," and section 6, in addition to authorizing such secondary schools as may be established by the legislature, further provides that the legislature may authorize and cause to be levied a special state school tax for the support of day and evening secondary schools and technical schools, and that "all revenue derived from such special tax shall be applied exclusively to the support of the schools for which such special tax shall be levied." The liberal policy of the state toward the maintenance of public schools is declared by section 1 of article IX of the constitution: "A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement." There are other references in the constitution to supplement the conclusion that the organization, management, and support of the public school system has been left within the legislative discretion, subject to the few mandatory provisions quoted whereby it was intended to safeguard certain features of elementary education by the constitution itself.
There is nothing in the constitutional requirement that free text-books shall be supplied to the elementary schools which negatives a legislative power to also supply free text-books to secondary schools.
It is merely a question of how far the legislature may go in its paternal provision for the cause of education without exceeding the bounds of the general constitutional discretion that has been granted. There is nothing in the nature of the provision of text-books for the use of high school pupils to require different or more specific constitutional authority than has been found sufficient for the building and furnishing schoolhouses, employing teachers, supplying crayons, pens, pencils and stationery, maps, charts, and other high school equipment.
[3] The presumption which attends every act of the legislature is that it is within the constitutional power. [4] The legislature is vested with the whole of the legislative power of the state and may deal with any subject within the scope of civil government unless it is restrained *497
by the provisions of the constitution, and the presumption that the legislature is acting within the constitution holds good until it is made to appear in what particular it is violating constitutional limitations. (In re Madera Irr. Dist.,
We have been able to find no authority questioning the right of the legislature to provide free text-books in the high schools. There are decisions holding that boards of education and trustees of school districts cannot exercise such power under general authority to provide necessary supplies for the schools, and without express legislative sanction, but such limitation of power is obvious. The implication is generally conceded, however, that such power does rest with the legislature in the absence of constitutional restraint. (Board of Education v. Common Council,
The people have seen fit to safeguard certain features of a free school system by mandatory provisions of the constitution, relating particularly to elementary schools, but beyond this, in the matter of secondary and high schools, the legislature seems to be left with plenary power to act in its discretion for the public welfare.
In considering the power of the legislature of Indiana to establish a free library, the supreme court of that state (School, City of Marion v. Forrest,
We see no grounds for holding that the express and mandatory requirement of our constitution that free text-books shall be furnished to pupils of the elementary schools should be construed as a limitation upon the power of the legislature to also furnish free text-books for the use of high school pupils. It may well be that it was considered expedient in this as in other respects to require legislative action in behalf of the elementary schools, and to leave the provisions for more advanced education to the discretion of the legislature. [5] Express enumeration of legislative powers is not exclusive of others not named unless accompanied by negative terms. (Exparte McCarthy,
[6] It seems clear under the comprehensive direction of our constitution, which requires that the legislature "shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement," through the agency of a free public school system, that the right to extend the free use of text-books can only be questioned under some express constitutional limitation. It has been suggested, although the point is not raised by the petitioner in this proceeding, that such inhibition is found in section 31 of article IV of the constitution, which provides that the legislature shall not have power "to make any gift, or authorize the making of any gift, of any public money or thing of value to any individual." It would appear that this objection, if pertinent, applies to every phase of a free school system as well as to the free use of text-books. All the furnishing, equipment, and appliances of our public schools, the very tuition itself, is a contribution of something of value to the school patrons. To argue that some of these agencies and not all are expressly authorized for the benefit of the school population by the general constitutional provisions for the maintenance of a free school system, or that the scope of school service is limited to rudimentary education in the "three R's" and such equipment as was deemed sufficient when our constitution was adopted, is to place our public schools under the blight of the "dead hand," with no chance for expansion and development in line with our growing culture and civilization. Such a construction would be a serious limitation upon the numerous high school centers throughout the state *500 of California, and the normal and technical schools, with their costly and elaborate equipment of libraries, chemical, electrical, and mechanical laboratories and appliances provided for the use of pupils.
The true explanation of the apparent conflict of authority would seem to be that the free school system with all its equipment is not primarily a service to the individual pupils, but to the community, just as fire and police protection, public libraries, hospitals, playgrounds, and the numerous other public service utilities which are provided by taxation, and minister to individual needs, are for the benefit of the general public. It is so interpreted by the introductory declaration of our constitutional provisions for a free school system that "A general diffusion of knowledge and intelligence" is "essential to the preservation of the rights and liberties of the people." It is to be noted that under the Free Text-book Act the books remain the property of the district, and the pupils have the use of them only in substantially the same manner that they have the use of other school appliances. To hold that the legislature is without power to provide text-books for the high school pupils would place a limitation upon its discretion in encouraging "by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement" that might seriously cripple our boasted system of public education.
The second point of contention is raised under section 12 of article XI of the constitution, which is as follows: "The legislature shall have no power to impose taxes upon counties, cities, towns, or other public or municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes, but may, by general laws, vest in the corporate authorities thereof the power to assess and collect taxes for such purposes."
It is claimed that a school district comes within the application of this section, and that taxes for high school purposes are for county or municipal purposes within the meaning of this section. (McCabe v. Carpenter,
The general procedure for estimating and levying taxes for maintenance of high schools is provided in sections 1756 and 1757 of the Political Code. Under section 1756 it is made the duty of the high school board to make and file with the *501 county superintendent of schools an estimate of the amount of money required for maintaining the high school of said district for the current school year, showing the amounts required for (a) teachers' salaries; (b) current expenses; (c) books, magazines and apparatus; (d) sites, buildings, and furniture; (e) other miscellaneous expenses. Should the board of any county high school district fail to make this estimate, it becomes the duty of the county superintendent of schools to make it. Such estimate, when fully prepared, is to be submitted to the board of supervisors. Section 1757 directs that the board of supervisors at the time of making the tax levy for the year for county purposes shall levy a special tax on the property of the high school district "sufficient in amount to carry out the purposes legally specified in the said estimate."
The constitutionality of such a levy and its conformity to the limitations imposed by section 17, article XI, of the constitution, is upheld by this court. (People v. Lodi HighSchool Dist.,
The decision in the case of McCabe v. Carpenter,
[8] But there is another answer to this last objection to the validity of the Free Text-book Act. Section 2 is no part of the authority or procedure for providing free text-books. Section I of the act provides for the adoption by the high school boards of the respective districts of text-books for use in high schools and directs that after July 1, 1920, text-books shall be supplied to pupils of the high schools without charge. This includes all pupils of the school, whether residents or nonresidents of the district. It is further provided that the high school board may pay for text-books furnished in accordance with the provisions of this act out of the special fund of such high school district. Section 2 is an independent and supplemental provision in no way affecting the sufficiency or validity of the preceding enactment. It merely provides a method by which the district that has furnished and paid for free text-books to its pupils residing in other parts of the county may recover the moneys thus expended. It is not apparent how the invalidity of this provision, if it should be held invalid, could affect the constitutionality of the general scheme of providing text-books to pupils of the high schools, or in what way the elimination of this provision for reimbursement would entitle petitioner to the relief demanded. This particular fund provided for by section 2 has no relation to the payment of the publisher's claim for books supplied, referred to in section 9. [9] We are of the opinion that even though this provision of section 2 might be held invalid, it is not so vitally a part of the general scheme and purpose of the act as to nullify its main features, and the act would still stand as a valid substitute for section 1750, which petitioner is seeking to enforce, at least to whatever extent the two enactments are in conflict.
If it is contended by petitioner that the act of the legislature in placing upon high school districts the burden of providing free text-books must necessarily result in imposing additional taxes upon such districts and municipalities, the answer is that the obligation thus created is not different from those originating in the same manner for other school supplies, the validity of which have been repeatedly upheld by the courts. The school district is created by the legislature *504 as an instrument of the state. Such quasi-municipal corporations are but the agents or representatives of the state. They are organized for the purpose of the legislature in its province of providing for the general welfare. The organization and administration of a uniform public school system is especially delegated to the legislature by the constitution. The legislature has provided for the institution and maintenance of schools through the agency of school districts and boards of education. If the legislature is denied the power to fix the nature and extent of the burden to be borne by the districts, and to define and prescribe the duties of school boards in providing equipment for the schools, there would be an end to any coherent or uniform system of public education.
In State ex rel. Clark v. Haworth,
Under the California law the legislature has seen fit to create municipal districts through which to organize and conduct the schools. It retains all the powers not expressly conferred upon the school trustees or boards of supervisors.
It may well be questioned if the imposition of financial burdens upon school districts by general laws for maintenance of public schools comes within the restriction of the constitution against taxation for local or municipal purposes. The public schools are state schools, and it is within the discretion of the legislature whether to make them a charge upon the state at large, or to do as has been done in the matter of elementary schools, make them partly a charge upon the state at large and partly upon local districts, or, as in the case of high schools, place practically the entire burden for the local school upon a district organized for that purpose. But conceding the rule as recognized inMcCabe v. Carpenter,
In other words, in dealing with these local municipal agencies for conducting the state administration, the legislature reserves the right to impose burdens which must be met by local tax levies. The whole county government system is based on that theory. The state, for example, enumerates the officers who are to conduct the public business of the municipality and fixes their compensation, which the county is required to pay through the levy, collection, and disbursement of local taxes. In the administration of the public schools the general laws of the state direct the purchase of certain supplies and require the directors or school board to include estimates for that purpose in their annual budgets, and impose upon the board of supervisors of the county the duty of including in the tax levy a sufficient amount to cover the cost. Section 1620 of the Political Code provides that "writing and drawing paper, pens, inks, blackboards, blackboard rubbers, crayons, and lead and slate pencils, and other necessary supplies for the use of the schools, must be furnished *506 under the direction of city boards of education and boards of school trustees, and charges therefor must be audited and paid as other claims against the county school fund of their districts are audited and paid." This section applies primarily to elementary schools, but the High School Act (Pol. Code, sec. 1741) provides that except as otherwise provided, the powers and duties of high school boards shall be "such as are now or may hereafter be assigned by law to boards of education or boards of school trustees in school districts." And as has been pointed out, section 1756 of the same code requires every high school board to file annually with the board of supervisors an estimate of the amount of money required for the annual expenses of the high school, including that for "books, magazines and apparatus" and for "other miscellaneous expenses," and under section 1757 the supervisors are required to include in their tax levy as a special fund for such high school districts a sufficient amount to cover such expenses. This provision for free text-books stands upon precisely the same grounds.
Having reached the conclusion that there is no constitutional limitation upon the legislature in supplying free text-books, it follows on the facts and reasoning stated that the method of procuring and paying for such text-books as provided in the Free Text-book Act is not in violation of the limitation of section 12, article XI, of the constitution.
The petition is denied.
Wilbur, J., Lawlor, J., Olney, J., Lennon, J., and Angellotti, C. J., concurred.
Dissenting Opinion
I dissent.
If an amendment of the constitution was necessary to authorize the legislature to provide for free text-books in the elementary schools, as would seem to be implied from the adoption of the amendment of 1912, expressly giving such authority (sec. 7, art. IX), I can see no reason why it is not also necessary in order to authorize the legislature to provide free text-books for the high schools for the use of the pupils therein. Both, alike, are gifts by the state to the pupil, or to the parents or guardians of the pupil, of the use of *507 the text-books during the attendance at school, and both are, therefore, gifts of a "thing of value" to an individual. As such it is expressly forbidden by section 31 of article IV of the constitution. If the prevailing opinion is correct, the submission by the legislature and the adoption by the people of the free text-book amendment of section 7, article IX, in 1912, was a vain and useless performance.
There is not, as it seems to me, any force in the suggestion that providing free text-books to a high school pupil is no more a gift than is the providing of buildings and the furniture, fixtures, and appliances therein which are reasonably necessary to carry on the schools. The constitution itself provides that the legislature "shall provide for a system of common schools by which a free school shall be kept up and supported" (sec. 5, art. IX), and that "the public school system shall include . . . elementary schools and . . . secondary schools" (sec. 6, art. IX). The history of section 6 and its successive amendments shows that the term "secondary schools" has been substituted for the term "high schools," and means, or at least includes, high schools. The authority to provide for and support high schools of necessity implies authority to provide the buildings and the furniture, fixtures, and appliances therein necessary to carry them on. The authority to provide all these things is, therefore, derived from the express language of the constitution.
The fact that a provision for free text-books is not essential to the maintenance of the high school system is demonstrated by the history of the common or elementary schools in this state and elsewhere. Such schools were successfully and effectively carried on in this state for more than sixty years before any free text-books were furnished for the pupils. Consequently, the authority to keep up and support high schools does not, by implication, include authority to furnish text-books for the pupils who attend them.
If it were not for the aforesaid constitutional prohibition against gifts by the state to any individual, I believe the legislature would have power, under the general grant of section 1, article IV, and under the command of section 1, article IX, to "encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement," to go to the length of providing free text-books *508 for pupils in all of the schools. But with this inhibition in force such gift is, in my opinion, beyond the legislative power.
Rehearing denied.
All the Justices concurred, except Shaw, J., who dissented.
