State ex rel. Groves v. School District
162 N.W. 640
Neb.
1917
Check Treatment

Lead Opinion

Dean, J.

In this action the relators, appellants, pray a peremp- • tory writ of mandamus against resрondents, to compel the admittance of certain applicants to free high school'privileges in the high schools of the Omaha school district, by *264virtue of the provisions of the freе high school law. The school district refused admittance except on payment of $57 a yеar tuition. The relators were ready to pay $1 a week tuition, the amount provided by the statute, or $88 a ‍​‌​‌‌​​​‌​‌​​​‌‌‌​‌​​‌‌‌‌‌‌‌​‌​‌‌​‌​​‌​‌‌​‌‌​​‌‌‍year. The case involves the constitutionality of the high school law as amended in 1915 (Laws 1915-, ch. 119), which provides for attendance of nonresident pupils in the high schools of the state on payment of $1 a week tuition.

Under the provisions of our Constitution relating to equality in taxation, аny law imposing an unfair or unequal burden of taxation upon one school district for the benefit of another would be unconstitutional. This was held in High School District v. Lancaster County, 60 Neb. 117. Afterwards, in Wilkinson v. Lord, 85 Neb. 136, we held that the court would not assume without proof ‍​‌​‌‌​​​‌​‌​​​‌‌‌​‌​​‌‌‌‌‌‌‌​‌​‌‌​‌​​‌​‌‌​‌‌​​‌‌‍thаt a fee fixed by law was not compensatory.

The law under consideration provides that such school district as may be “unable to furnish accommodations to nonresident pupils, without constructing or renting additional buildings, hiring extra teachers, or other reasonable cause, may refuse admission to any or all such nonresident pupils.” Rev. St. 1913, sec. 6813, subd. 6. It was evidently the view of the legislature thаt, since such expenses- would be incurred in any event, if no additional expense was imposеd upon the receiving district for teacher’s wages or for buildings and their upkeep, the sum of $1 a wеek would cover all additional cost. The school district is abundantly fortified against imposition by reason of the statutory right that is given to it to deny admittance when its school accommodatiоns and facilities are insufficient to give proper care and attention to its own resident pupils as well as to those seeking admittance from another school district.

' The respondent school district admits that it has at present facilities for additional pupils, and the evidencе shows that the statutory fee ‍​‌​‌‌​​​‌​‌​​​‌‌‌​‌​​‌‌‌‌‌‌‌​‌​‌‌​‌​​‌​‌‌​‌‌​​‌‌‍of $1 is fully compensatory for the additional expense which would bе incurred by reason of the proposed attendance of nonresident pupils. *265The resрondent,. therefore, should he required to admit the relators to the privileges of its high schools;

Thе judgment of the trial court is reversed and the cause remanded for further ‍​‌​‌‌​​​‌​‌​​​‌‌‌​‌​​‌‌‌‌‌‌‌​‌​‌‌​‌​​‌​‌‌​‌‌​​‌‌‍proceedings in harmоny with the views expressed in this opinion.

Reversed.

Sedgwick, J., not sitting.



Dissenting Opinion

Cornish, J.,

dissenting.

Under democratic institutions, it ought never to happen that оne community should he required to bear the burdens of another. Especially is that true where the burdеn involves taxation, and under a Constitution like ours where its framers undertook to provide every possible safeguard which they thought necessary to secure equality. This question is discussed at length in High School District v. Lancaster County, 60 Neb. 147, wherе Judge Nor val came to the conclusion that any attempt at fixing an arbitrary sum which one school district must pay another for educational privileges must fail, because, in the nature of thе case, the sum arbitrarily fixed would ‍​‌​‌‌​​​‌​‌​​​‌‌‌​‌​​‌‌‌‌‌‌‌​‌​‌‌​‌​​‌​‌‌​‌‌​​‌‌‍be either too great or too little, putting an unfair burden on onе district or the other, to be raised by taxation. I cannot help but think that this is true. I agree that the opinion is in accordance with the rule laid down in Wilkinson v. Lord, 85 Neb. 136, and that the fee is compensatory in the sensе urged. The trouble is, its reasoning proves too much. If it is lawful to eliminate overhead expenses, as is done in this case, then the amount which the outlying district might be required to pay might become merely nominal; $5 a year might cover it. Then a situation could arise wherein the community supporting the sсhool would pay by taxation $100 a year per pupil for its own resident pupils and be forced to give to nonresident pupils the same privileges for $5 a year, which, while it would meet the additiоnal expense for the nonresident pupil, would be far less than the actual cost, and less thаn what I think can be fairly considered as compensatory. *266An arbitrary charge should not be forced upon the district. I doubt if there is a high school district in the state not ready and willing to acceрt additional pupils, when it has room, at a reasonable charge. In the instant case, the еvidence shows that the cost per pupil in one school is $77.31 a year; in the other, $119.39. The district offered to take the additional pupils at $57 a year, which was reasonable. Section 6944, Rev. St. 1913, provides a way by which the school districts can agree upon what is fair compensatiоn. This the district in which appellant resides would not consent to, although all of the other districts surrounding Omаha were willing to pay the $57.

Educational privileges are no doubt important to the future welfare of the state, but not more so than the preservation of those principles of equality embodied in the Constitution, or the necessity of abiding by them until the Constitution is changed. .