99 Neb. 73 | Neb. | 1915
Lead Opinion
Action by plaintiff to restrain the collection of taxes levied for school purposes under sections 11540, and 11543, Ann St. 1911. Twenty causes of action, against as many school districts are set out in the petition. Nineteen of these causes of action involve the same question, the only difference being that they relate to separate and distinct school districts, and there is a difference in amount. The parties have seen fit to select district No. 3, being the second cause of action, as typical of the 19. The case of this district turns upon the construction of section 11540, Ann. St. 1911.
Plaintiff’s line of railroad extends throughout the district, and its assessed valuation therein is approximately 50 per cent, of the total assessed valuation of the district. There is no substantial dispute as to the facts. Prior to the annual school district meeting held June 30, 1913, the district trustees estimated that the expense of maintaining the school during the ensuing year would be $800, and at the annual district meeting it was determined by the voters of the district, that $800 would be required for the maintenance of the school during the school year, and the distinct officers sent up their certificate to the proper county officers showing that the school district had voted $800' as the estimated expense of maintaining the school for the next school year, and requesting that a levy be made sufficient to raise that amount. The county board caused a levy of 8 1-2 mills on the dollar valuation to be made. Applied to the assessed valuation of the property of the district, this would produce $959, and it made a charge against plaintiff’s property of $501. At the time the school district had on hand $703.82. Thus it will be seen
The section under consideration reads as follows: Section 11540: “That trustees of each school district within the State of Nebraska shall, prior to the annual school district meeting in each year, provided for by section 5427 ' of this act (11530), prepare an estimate showing the amount of money required for the maintenance of schools during the coining school year, and the legal voters at the annual school meeting each year, shall determine the amount of money required for school maintenance during the coming school year, which shall be an amount sufficient to maintain a school in the manner and for the time provided in section 5440 (11545) of the act and the amount of money so required shall be levied as a tax upon all of the taxable property of the school district; provided, that in districts having four children or less of school age, the amount levied shall not exceed the sum of four hundred ($400) dollars in any year; and in districts having more than four and less than sixteen children of school age, the levy shall not exceed the sum of fifty ($50) dollars per child in addition to the above. The amount of money so voted as being necessary for the maintenance of the school for the coming year, shall be certified by the district school board to the county clerk of the county in which said school district is located and said amount shall . be levied by the county board on the assessed value of the school district, and be collected as other taxes; provided, that the amount so levied shall not exceed in any one year
Under this section it was the duty of the school district officers to prepare an estimate showing the amount.of money required for the maintenance of the school, and the legal voters were left to determine at the annual school meeting the amount required for school maintenance during the succeeding year, with a provision that the amount so voted should not exceed “in any one year two and one-half ($2.56) dollars on the one hundred dollar valuation as assessed and equalized.” The amount voted and levied is within the 25-mill limitation. But plaintiff contends that, after the school district has determined the amount necessary to meet the expenses for the ensuing year, it must then take into account the amount of money on hand, and that the levy shall be no more than is sufficient to raise the difference between the amount on hand and the amount fixed and determined as the sum necessary to meet the expenses for the ensuing year. So far as this cause of action and those similar to it are concerned, this is the question to determine.
The other complaint is directed against an assessment and levy made by district No. 22 for the purpose of creating a building fund. It is pointed out that the only authority for voting this tax was derived from section 11543, Ann. St. 1911, which, so far as material here, provides that the voters at the annual school district meeting may determine upon a levy not to exceed ten mills on the dollar valuation, which shall be expended for building purposes, upon petition filed with the district trustees at least twenty days before the annual meeting, of one-fourth of the legal voters of the district, praying that the question of voting a tax for that purpose be submitted at the annual meeting, and making it the duty of the trustees to include such question in the posted notices calling such meeting, requiring that the petition shall definitely state the whole question to be submitted, including the sum desired to be raised or the amount of the tax to be levied, and the whole regulation, in-
After a school district'has determined the amount necessary to meet its expenses for the ensuing year, must it take into account the money it has on hand and adjust its levy so as to raise an amount which, added to the sum on hand, will meet the expenses of the district, or is it free to disregard the money already in the treasury and make a levy which will raise an amount equal to the estimated expense for the year, provided this levy is within the 25-mill maximum fixed by the statute? It has never been the policy of the law to create a fund by taxation to lay by for future use, except only in the case of building funds, sinking funds to meet outstanding bonds, etc., and in these cases express authority is given by statute. Even these statutes provide for certain formalities and special notice, so that the voters of the district may have their attention directed specifically to the proposed levy. The section quoted (11540) shows that the estimate shall be made annually. It also provides that the voters at the annual meeting shall determine the amount necessary for school maintenance during the coming year, and that this amount shall be “sufficient to maintain a school in the manner and for the time provided.” There is no suggestion that money may be accumulated for future use. But the provisions for the annual estimate, the annual meeting, and the annual levy of a tax indicate a contrary intention
No complaint is made of the estimate, and there is no attempt to deprive the district of money sufficient to meet its expenses. But no reason is advanced for levying a tax to defray expenses when there is money in the treasury available for that purpose. The district court was right in holding that the amount in excess of that required to raise the difference between the amount on hand and the amount needed was levied for an illegal and unauthorized purpose.
The remaining question relates to the levy for building purposes made by district No. 22. Section 11543, Ann. St. 1911, heretofore in substance set out, was the only author
The taxes complained of, having been levied for an illegal and unauthorized purpose, come within the saving clause of section 6491, Rev. St. 1913, and were properly enjoined.
The judgment of the district court is
Affirmed.
Concurrence Opinion
concurring.
I think the levy in this case was made for an unauthorized purpose. “Taxes levied in excess of the constitu
Dissenting Opinion
dissenting.
The important question in this case is: Can the relief sought by plaintiff be obtained by injunction? Section 6491, Rev. St. 1913, provides: “No injunction shall be granted by any court or judge in this state to restrain the .collection of any tax, or any part thereof hereinafter levied, nor to restrain the sale of any property for the nonpayment of any such tax, except such tax or the part thereof enjoined be levied • or assessed for an illegal or