12 Mont. 503 | Mont. | 1892
This is an application for a writ of mandate to be directed to the board of county commissioners of the county of Yellowstone, commanding the levy of a special tax on the property of School District No. 6, for the purpose of satisfying a judgment in favor of Louise Shapley. The following facts are admitted by the parties: A judgment was obtained October 29, 1890, in the District Court of the Seventh Judicial District of the State, by said Shapley, against the board of trustees of School District No. 6, in the county of Yellowstone, for the sum of $480, and costs. No part of this judgment has been paid, although a demand therefor has been made upon said board of trustees. The amount of moneys belonging to said district is $340.15, which is insufficient to pay the judgment. The relator presented June 7, 1892, a petition, and prayed that the respondent, “ while levying taxes for county and school purposes for the year 1892, cause to be levied upon all taxable property within said School District No. 6 a tax sufficient for paying irt
The main issue of the law is stated in the following allegation of the pleadings: The application states “that, as affiant is informed and believes, it is the duty of said board of county commissioners, under the provisions of the laws of the State of Montana in such case made and provided, to levy a tax on the taxable property of said school district sufficient to raise funds wherewith to pay the amount of said judgment, interest, and costs, owing and due, according to the terms thereof, at the time when payment is made; which tax should be levied and collected at the time and in the manner provided by law for the levying and collecting of other taxes upon the taxable property of said school district for the present year, A. D. 1892.” The answer thereto is as follows: “We deny that it is the duty of this board of commissioners, under the provisions of the laws-of Montana, to levy a tax on the taxable property, or any part thereof, of School District No. 6, in the county of Yellowstone, State of Montana, sufficient to raise funds wherewith to pay the amount of said judgment, or any other amount, or the interest thereon, or any part thereof, or the costs, or any part thereof, or to levy any tax whatever on said property of said district, or any part thereof, except under and according to the provisions of sections 1902, 1905, 1906, of the School Laws of Montana, and section 765, fifth division of the Compiled Laws of Montana. This board, further answering, says that it has no power or authority, under the laws of the State of Montana, to levy said tax, or any part thereof, as prayed for in the within petition ¡, that the levying of said tax, as prayed for in said petition, is not
The judgment, under the statutes regulating this matter, is a debt of the school district. “Any board of trustees shall be liable, as trustees, in the name of the district, for any judgment against the district for any salary due any teacher on contract, and for all debts legally contracted under the provisions of this article, and they shall pay such judgment or liabilities out of the school moneys to the credit of such district.” (Comp. Stats, div. 5, § 1888.) The Constitution points out the mode for the payment of these judgments: “ Private property shall not be taken or sold for the corporate debts of public corporations, but the legislative assembly may provide by law for the funding thereof, and shall provide by law for the payment thereof, including all funded debts and obligations, by assessment and taxation of all private property not exempt from taxation within the limits of the Territory over which such corporations, respectively, have authority.” (Art. xii. § 8.) The funds of school districts are in the custody of the county treasurer, who is charged with the duty of collecting and disbursing the same. (Comp. Stats, div. 5, § 1867.) The trustees of the school district have no power to levy a tax to secure the money which is necessary to pay the claim of the relator. Their authority is also restricted by the clause providing that they cannot draw a warrant on the county treasurer in favor of any person, “unless there is money in the treasury to the credit of such district.” (Comp. Stats, div. 5, § 1869.) "We are not aware of any statute which can be invoked by the relator to aid her in the collection of this judgment, through the agency of the trustees of the school district.
What duty has been devolved by law upon the respondent for the assessment of taxes for school uses? The intention of the framers of the Constitution is evident when we compare the following clauses: It is solemnly ordained “that provision shall be made for the establishment and maintenance of a uniform system of public schools, which shall be open to all children of said State of Montana, and free from sectarian control.” (Ord. 1, par. 4.) “It shall be the duty of the
The respondent maintains that this application must be denied because there is no statute which declares expressly that the board of county commissioners shall make an assessment for the payment of a judgment against the school district. "Viewed abstractly, this proposition is plausible, but the Constitution and revenue system of the State contemplate one mode of satisfying every demand of this nature. (Stats. 2d Sess. supra.) The respondent has been clothed with ample authority to levy taxes for the establishment and maintenance of public schools. This judgment is an obligation which has been incurred in accomplishing these objects.
We approve of the doctrines, which have been concisely expressed by Judge Cooley in his treatise on Taxation: “One of the most common cases in which the writ of mandamus is employed in tax matters is where it has become the clear duly of the authorities to levy a tax for general purposes, or for the payment of some demand, and they refuse to do so. In such cases the remedy may be had on behalf of the State or the municipality concerned, or by any individual whose demand the tax should pay. Thus, if one has recovered a judgment against a municipality which can only be paid by means of taxation, the levy of a tax to pay it may, in proper cases, be compelled. It is customary to make express provision by statute for such cases, and, when the statute requires the levy of a tax, the case is clear. When the statute does not expressly require it, the duty may perhaps be equally plain if the muniei-. pality has been clothed with the requisite power.” (Cooley on Taxation, p. 524, and cases cited.) The last sentence in the quotation from the learned author, and the sections of the Constitution and statutes supra, refute the argument of respondent. Taxation must be resorted to in order that a sufficient sum of money may be credited to the school district before the trustees can pay this judgment. We think that the respondent has the power to act in the premises.
It is therefore ordered that a peremptory writ of mandate be issued, according to the prayer of the relator.
Mandate issued.