Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
200 C. Gladniy Criminal District Attorney Task County Anderson, Texas
Year 2121
Cplnion No. 6-585 Re: Apporilamode of County-nice Equilization Tax to County line 27465 Civil Statutes
To have carefully agualated the question subrit- ted in your letter of February 5, and again presented in your brief sent as with your letter of February 15.
To with 20 express our sincere appreciation and respect for the excellent brief you prepared on this ques- tion, which has been of inextinable assistance to us.
The question as stated in your letter of February
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Task county has levied and collected the County-like equalization Tax authorized by said Article 27465, and a distribution of the funds derived duefew as to be made within a few days. In all probability, there will be some question as to the apportionment to be made to the sevepal colool districts near the county 11he and which school districts extend beyond the boundary of Task county and eshrace a part of the sujolinies county where said tax is not levied and collected. There are to be found in such county line school districts a large number of pupils, who, though they are regularly by enrolled on the school census roll of the school district, are not residents of Task county, even though the district is compelled to provide educational opportunities for them.
"Consequently the following question arises: Is the county Board of School Trustees authorized
*2 Ir. Joe C. Gladeny, Larch 1, 1939, Page 2 under the provisions of Irrtiole 27440 to distri- bute the conery colloced Irox the tax on a per capita apporticment confinin; the number of per capitas to those pupils only who are eat al residents of Iusk county? or, to put the question in different words: Thall the County foord of School Irustess distribute tho money collected to the corion and indepandent sctiool districta of the county on a por capita basis, that is, accorting to the number of regularly anrolled pupils on the scholastic census roll living with- in ould school district, regardless of whether such regularly anrolled pupils are residing out of Iusk county and in an edjoining ounily where such tax is not being loviad or collected?"
Article 27440, Revised Statutes (being Chapter 231, p. 454, of the Acts of the forty-fifth Legislature, 1929) provides that certain counties in the preseribod classification, may, upon olcotion approving case, ascees and collest a county-wide equalization tax of teanty-five cents per 3100.00 valuation, the proceeds of such tax (under Section 6 of the Act) to be distributed "to the corion and independent school districts of the county on the same basis that the state per capita apportiontont is distributed among said common and independent school dis- trict."
The Act itself prescribes the basis of "the state per capita apportiontont" as the rule by which thin oonety- wide tax is to be cistributed. To auat look, therefore, to the rulea governing "the state per capita apporticment" as a guide in dotermining the instant question.
Article 7, Section 5, of the Constitution of Texas provides " " and the available sohool fund horain provided shall be distributed to tho several counties (uncertinins ours) according to their scholatific popula- tion and applied in such zanner as may be provided by law." The legislature prescribed the procedure for carryin; out the purposes of this provision of the Constitution by ir- ticle 2663, i. S. 1925, which roads in part: "On the first of each month, the state. Superintendent shall procate to the several counties, cities and towns and school districts constituting separate school organizations,
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T. Joe C. Gladney, March 1, 1939, Page 3 according to the scholastic population of each, the available school money collected during the preceding month * * *"
In construling the meaning and intent of this statuto we must bear in mind tho constitutional provision to which it relates. Unfor the statute the state fuperintendent may remit funds directly to the "seperate nchocl orgenizations" which oonstitute the oducatioral systex of a county. BOT - when any quontion of proration betwoen oounties arises - the oonstitutional provirion must be folloned, and it requires equality of distribution anong oounties based on scholestio poyulation. Cucu a queation of apportionment of the. available school fund under tho Constitutlon arimo in tho case of every ountry-ling -cheol district. It cannot be aariously eontrontod that ueh a county-11no district would be oatitied to othin its share of the available school fund as allotted to each zounty, based upon tho scholastic population of the dixtrict in both. oounties. Ouch a procedure would give to zountr-1ine districts lying in two oounties twioe the proportion of the available fund allotted to districts lying wholly within one county. It follows, therefore, that a county-line sthool district may receive its proportionate share of the state available achool fund allotted to each county (under the Constitution) on the basis of such district's Scholastic population in such county only.
Inasmuch as Article 2744 e expreasly provides that the proceeds of the oounty-wide tax thorein provided shall be distributed "on the same basis that the state per capita apportionnent is distributed" it would seem to follow that a county-line school district would be ontitled to olaim its share of a county-wide tax based only on its soholastic population in that county. Applying this principle to tho specific situation outlined in your brief, of the Carlisle School District which 1108 partly in Cherokee and partly in Fusk county, it is our opinion that the Carlisle Distriot is entitled to ahare in the prooode of the Fusk county equalization tax, based only on its soholastio population in both counties.
To have been forced to this conolusion not mrely by reason of the application of the "basin" set out in the statute itself, as outlined above- but also for the reason
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Ir. Joe C. Glanney, Iarch 1, 1939, Page 4 that we rould have serious doubts as to the constitutionality of Article 27440, if tho contrary application vere made. If tho callislo sohool Distriot is to ohare in the proceads of a tax on property in fusx county, based on its soheisstio porelation in both juck and Cherokeo counties - then Fusk county teros rould' be used to educuto Chorotro county children. Such eivorsion of the tares or azcets would prajuctoo tho right: of Fuck county targayers. Yertoll vs. : Iddetion, Tex. S. Ct. 1919, 191 J. 2. 1133; joard of fohool iructoes of Iarodo vs. Tobb Couzity, 64 J. F. 456, writ of error refugod. are not unaindful of the inequality of the tax burdon motioned in your brief betwien property in the tho parts of ti.o Carlisle ochool Distriot, Gso to the higher percontage valuation in Cherokeo then in huck oomaty. As was said in Tippon vs. Pontotoc Coxeon County Lino School District 20. 21, 27: 2. 2. 469, to which you have reforred as: "Exact equality and uniforality in taxation is probably unataineble - * "n. while to porait the Cherokeo County sohelastics to be counted in distributing the Fusk county equalization tax, might tend to offset the oxisting inequality, we do not believe this very laudable purpose justifies resort to a ceans not indicated by the statute nor aanctioned by the constitution.
The roason for the oxistent inequality of tax burdens botrsen the Cherokeo and tho Fusk county parts of the district is inhorent in the very nature of coonty-line districts. To cannot try to correct the evil by a strained construction of this atatute.
To hore given careful eonsideration to the case of Jlupcon vs: Pontotoc Coxmon County Lino School District, 275 i. 2. 449 (writ of error refused) toichich you have referred us in your brief. In that case various targayers, : school children and parents of. school children of that part of Llano County whioh had boen included in a county-wide school district with parts of lason and Can :alo counties broucht mit to seek to Ecolare tho Eistrict void. It had been ereated by special act of the Logislaturo in 1928 under the expreas authority of the constitutional aonduent, Article 7, section 3, adopted in 1909. Elaintiffs contended they were injured by the creation of the county line diatriot in that the Llano County :chool forganent Fund yiolds an incoro of i5.00 per year for scholastic, whereas the lason and in Saba County school funds yield only fifty cento and 41.00 respectively. The Austin Court of Civil Appeals sustained the triel court's dismissal of the suit
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Hr. Joe. C. Gledney, Larch 1, 1939, Page 5
on demurfor, sayins: "The purpose of the constitutional azeadrent authorizing oourty line clatricta was no doubt to bring larger beneflte and increased faellitie: to the sohelastics affected; and it is peculiavily a legislative function in ereating such cistricta, to Getorize whether thean worthy objects will be thereby acoamplizhed. The disoaction of that body is not oubject to rovige, except, perhapa, in case of palpable abusos."
Efferring to the inequality of value of the school lands in the three counties the court sald, at page 452 : "It is not seriously questioned by aptealants that insofar as the inequality in these per capita allotzents is concerned, adjustrents might be made so as to give to those entitled to the greater per capita the benefit of the exoes: " * . Any attempt at an unlamful diveraion of the fund or any part thereof may be prevented by appropriate legal action, and such portion of the fund so sought to be diverted theroby protected and hold until such tike as legal moans for its use in behalf of the.bencficiaries were provided. "0 * * the gronts created a trust fund for the benefit of the scholastios of the county which could not be diverted to other purpases or beneficiaries. The administration of the fund within these limitations, is subject to legislative control."
It is clear from the above quoted language of the opinion that the court, by upholding the velidity of the special act creating the district, did not sanction the diveraion of any of ilano County's permanent school fund for the benefit of lizson and San -aba County school children, but rather exprosoly stated that this was a truet fund which could not be diverted to other purposes or beneficiaries." The court conterplated that the administration of the district should take cognizance of the differcnces in the pernanunt sohodl funds of the three countios out of which the district was carved when it said:
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Ex. Joe C. Gladney, March 1, 1939, Page 6
" . .m are not prepared to hold that under the ample powers given the trustees of the district in regard to the establishment, maintenance, and control of the schools therein, the benefit of this excess might not be provided for in the ay of a lonzer school-tem for the scholast 10 s entitled to such excess."
The case of 1 ume vs. 1 arrs, 40 S. N. (2d) 21 (Yer. Supreze court, 1931) cited in your brief, holds that the Legislature say, at it did in the hurl Aic Appropitation Act, use for general appropriations to ecueation, a different basis thru that laid down in the constitution for the distribution of the income free the per.ment school fund. It does not follow that any taxing authority, be it a state or a county say expend its tax revenues for purposes beyond its jurisdiction.
In Austin Independent School District vs. 1 arrs, 41 S. N. (2d) 9, the Comission of Appeals held that unisr Article 2700 of the Civil Statutes, the Austin Independent School District must pay its pro rata above of the salary and expenses of the County School Superintendent. The Court based its decision in part on the fact that the Austin District is "one of the immediate beneficiaries of various duties which the county superintendent is required to perform in the promotion of public school affairs throughout the county." Such justification cannot be made for the expenditure of Fusk County equalization taxes for the benefit of school children in an adjoining county.
The following quotation from Judge Carston's opinion in love v. city of Dallas, 40 F. N. (25) 20, seems to us almost conclusive of the point here at issue: "Inco the Constitution does not permit the taxation of the people of a school district for the support of that district, except upon a vote of the people of that district, it is not debatable that the Legislature cannot compel one district to use its funds and properties for the education of scholastics free another district, without just compensation." This principle should apply with equal force as between parts of two counties within a common-line school district.
It has been with extreme reluctance that we have been forced to reach a conclusion contrary to the one so ably presented in your valued brief. In order to clarify
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Ir. Joe C. Gladney, Larch 1, 1939, Page 7 thie opinion, wo are taking the liberty of attaching a copy of your brief hereto. to are also returning the original of your brief beremith in accorionce with your request.
Yours very truly ATTORREY CSTRAL OF TIDA By Maitr RPOGd EXIL Taltor F. Foch Assistant FIROVED: Fareed. Prown ATTORREY GENGRAL OF TEXAS