86 Neb. 135 | Neb. | 1910
Lead Opinion
This action involves the validity ‘of certain school district bonds. Defendants prevailed, and plaintiff appeals.
It is conceded by the litigants that the record presents but one controlling fact for our determination, and that is whether women may under any circumstances lawfully vote to authorize a school district to issue bonds. If, as plaintiff contends, the constitution disqualifies women from voting at such an election, the judgment of the district court should be reversed, otherwise it should be affirmed. In 1858 the territorial legislature provided by suitable legislation for school districts in the various townships in organized counties. Voters resident in the respective school districts qualified to vote at the territorial and county elections were authorized to vote at school district meetings. The districts were not authorized to issue bonds. In 1869 the state legislature passed an act “to establish a system of public instruction for the state of Nebraska.” 2 Complete Session Laws, p. 448 et seq. Section 23 of the act provides: “Every inhabitant of the age of tAventy-one years residing in the district, and liable to pay a school district tax therein, shall be enti
Section 1, art. VII of the 1875 constitution, provides: “Every male person of the age of twenty-one years or upAvards belonging to either of the folloAving classes, who shall haAm resided in the state six months, and in the county, precinct, or Avard for the term provided by laAV, shall be an elector: First, citizens of the United States. Second, persons of foreign birth Avho shall have declared their intention to become citizens conformably to the laws of the United States, on the subject of naturalization, at least thirty days prior to an election.” Section 5, art. IX, further provides: “County authorities shall never assess taxes the aggregate of which shall exceed one and a half dollars per one hundred dollars valuation, except for the payment of indebtedness existing at the adoption of this constitution, unless authorized by a vote of the people of
In State v. Walsh, 31 Neb. 469, we held that the word “means” as used in section 4, art. VIII, supra, refers to money arising from annual taxation for school purposes. In Affholder v. State, 51 Neb. 91, we held that the constitution vested the legislature with power to provide the funds, and discretion in applying the revenue, necessary to furnish free instruction to the children of the state. There is no provision in the constitution that the legislature or the agencies created by statute.for the purpose
In 1879 the legislature enacted a general law concerning school district bonds. Laws 1879, p. 170 et seq. (Ann. St. 1909, sec. 11318 ct seq.). Section 11319 directs that no bonds shall be issued until the proposition shall have been submitted to the qualified electors of the district, and two-thirds of such voters present and voting on the question shall have declared by their votes in favor of such bonds, nor shall a bond election be called unless one'-tliird of the qualified electors in the district petition therefor. Chapter 78, laws 1881, is a comprehensive act “to establish a system of public instruction for the state of Nebraska.” Section 1, subd. II thereof, provides: “Every voter and every woman who has resided in the district forty days and is over twenty-one years of age and who owns real property in the district shall be entitled to vote at any district meeting. Every voter and every Avoman who has resided in the district forty days and is over twenty-one years of age and who owns personal property assessed in his or her name at the last assessment shall be entitled to vote at any district meeting. Every voter and every woman who has resided in the district forty days and is over tAventy-one years of age and who has children of school age residing in the district shall be entitled to vote at any district meeting.” Subsequent amendments to the school law upon this subject do not change the qualifications of such voters. The amendment of 1899 provides that the qualified voters, as aforesaid,
The legislature from time to time has enacted statutes for the creation and management of school districts within the various cities of the state, and from the necessities of the case has vested the boards of education with authority to levy a school tax of 20 mills on the dollar valuation on all property in such districts. School levies have been made time and again in excess of 15 mills without first submitting the question to the voters of the district, and yet, if plaintiff’s construction of the constitution is. to be accepted, the excess over 15 mills of those levies is void. The entire course of legislation is repugnant to the construction plaintiff contends should be given the constitution. To hold as he desires would hamper the administration of the schools of the state, and emasculate article VIII of the fundamental law. The argument does not appeal to us as sound.
The judgment of the district court is right; and is
Affirmed.
Dissenting Opinion
dissenting.
The majority opinion quotes from chapter 78, laws 1881, which provides that every voter and every woman who has resided in the district 40 days and is over 21 years of age and who owns real property in the district, or who owned-personal property in his or her name at the last assessment, or who has children of school age residing in the district, shall he entitled to vote at any district meeting. Reference is also made to the amendment of 1899, which provides that such persons shall be entitled to vote “at any district meeting or school election.” The opinion also states that the act of the legislature of 1879 directs “that no bonds shall be issued until the proposition shall have been submitted to the qualified electors of the district, and two-thirds of such voters present and voting-on the question shall have declared by their votes in favor of such bonds, nor shall a bond election be called unless one-third of the qualified electors in the district petition therefor.” The opinion also -states that the act of 1879 “has not been modified in any manner material for an understanding of the instant case.” In this latter statement I fully concur. At the January, 1884, term of this court, in State v. Cones, 15 Neb. 444, Maxwell, J., in construing the act of 1881, supra, said: “The statute merely permits women possessing the necessary qualifications to have a voice in the choice of school officers, selection of teachers, and general management of schools. And, being-entitled to vote, they are also entitled to act as trustees. We have no doubt, therefore, that the act allowing women possessing the qualifications prescribed in the act to vote at school meetings is constitutional and valid.” In that construction of the law by the learned judge I fully concur. In speaking of the law as it then stood, the majority opinion states: “Subsequent amendments to the 'school law upon this subject do not change the qualifications of such voters.” In this statement I concur. The opinion further says: “The amendment of 1899 provides that the