School Dist. No. 24 v. Smith , 97 Or. 1 ( 1920 )

JOHNS, J.

1. It is elementary that a demurrer admits the truth of all material statements in the pleading against the sufficiency of which it is directed. Hence it must be assumed that the County Court made the levy for county purposes and the two different levies for school purposes at the time and in the manner and form hereinafter set out.

Chapter 156, Laws of 1919, provides:

“For the purpose of creating a county school fund, the County Courts of the several counties of this state. are hereby required to levy at the same time other taxes are levied, a tax for school purposes upon all the taxable property of the county, which aggregates an amount which shall produce at least $10 per capita for each and all of the children within the county between the ages of four and twenty years, as_ shown by the then preceding school census, which said taxes shall be collected at the same time, the same manner, and by the same officers as other taxes are collected; provided, that the per capita amount so levied in any county shall not be less than the per capita amount of the school tax levied in the county for the year 1919.”

This statute is direct and positive, and by its terms was the legal duty of the County" Court to make a sufficient levy to raise $10 per capita for all school children in the county. Article IX, Section 3, of the Oregon Constitution provides:

“No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same, to which only it shall be applied.”

Article XI, Section 10, originally read:

“No county shall create any debts or liabilities which shall singly or in the aggregate exceed the sum five thousand dollars, except to suppress insurrection or repel invasion; but the debts of any county the time this constitution takes effect shall be disregarded in estimating the sum to which such county limited.”

This section was construed by this court in Grant County v. Lake County, 17 Or. 453 (21 Pac. 447), and Municipal Security Co. v. Baker County, 33 Or. 338 (54 Pac. 174), where it was held that in the administration of its affairs debts of a certain class were thrust upon the county by operation of law, and were not within the constitutional limitation, such as' salaries, and fees of witnesses and jurors, and that the $5,000 limitation applied only to voluntary indebtedness. By an initiative measure approved December 5, 1916, Article XI was amended by the addition thereto of Section 11, reading as follows:

“Unless specifically authorized by a majority of the legal voters voting upon the question neither the state nor any county, municipality, district or body to which the power to levy a tax shall have been delegated shall in any year so exercise that power as to raise a greater amount of revenue for purposes other than the. payment of bonded indebtedness or interest thereon than the total amount levied by it in the year immediately preceding for purposes other than the payment of bonded indebtedness or interest thereon plus six per centum thereof; provided, whenever any new county, municipality or other taxing district shall be created and shall include in whole or in part property theretofore included in another county, like municipality or other taxing district, no greater .amount of taxes shall be levied in the first year by either the old or the new county, municipality or other taxing district upon any property included therein than the amount levied thereon in the preceding year by the county, municipality or district in which it was then included plus six per centum thereof; provided further, that the amount of any increase in levy specifically authorized by the legal voters of the state, or of a county, municipality, or other district, shall be excluded in determining the amount of taxes which may be levied in any subsequent year.

“The prohibition against the creation of debts by counties prescribed in Section 10 of Article XI of this Constitution shall apply and extend to debts hereafter created in the performance of any duties or obligations imposed upon counties by'the Constitution or laws of the state, and any indebtedness created by any county in violation of such prohibition and any warrants for or other evidences of any such indebtedness and any part of any levy of taxes made by the state or any county, municipality, or other taxing district or body which shall exceed the limitations fixed hereby shall be void.”

Except by a vote of the people, as above stated, the effect of this amendment was to place a 6 per cent limitation instead of the existing restriction upon all revenues derived from taxation for the current year, to nullify the force of the above' decisions as to a distinction or priority of debts of any class or character, and to bring all kinds of indebtedness within the constitutional limitation.

The original levy by the County Court of Marion County was based upon a budget for the estimated expenses of the county, including courts, jurors, witnesses, bailiffs and reporters, also the following items: Scalp bounties, $150; advertising, $600; expenses of exhibit at state fair, $800; indemnity for diseased cattle slaughtered, $500; fire protection, $375; fees under dog tax law, $800; “improvement,, maintenance and construction of roads, bridges, and ferries, and salaries of deputy road masters, patrolmen and assistants,” $156,784.63; under provision of market road law, Chapter 431, Laws of 1919, $52,300; interest on • county road bonds, $9,000. A total of $327,630.60 was levied for county purposes, $189,610.85 for state purposes and $107,456.02 for county school and library purposes, making a grand total of $624,697.47, which equals the amount of the tax-roll of the preceding year, plus 6 per cent thereof.

2, 3. Where the legislature has specifically required the levy of any tax by the County Court for a definite purpose, the law is mandatory, and such tax must be levied. However, when the County Court is authorized, hut not directed, to raise a tax for a given purpose, such levy is discretionary. The 6 per cent limitation must be respected and enforced; and when the legislature has directed the levy of a special tax, all taxes of that class should first be levied and included within the constitutional limitation. The levy of any discretionary tax within the limitation specified, by any board or County Court, should be postponed until all mandatory taxes have been levied in full. That is to say, the right of the County Court to levy and collect a discretionary tax is subject and inferior to the power of the legislature to direct the levy and collection of a mandatory tax.

4. As stated, the levy of the $10 per capita tax was mandatory. An examination of the different statutes under which the County Court acted in making its primary levy shows that in many instances the items were not mandatory, but only discretionary. For this reason such levies should have been postponed until the $10 per capita school tax was levied in full. Although that is the law, yet the fact remains that the County Court did not originally levy the full amount of the school tax, but included in its own budget items of discretionary taxes which were subject and inferior to the levy in full of the $10 per capita tax. For example, the primary levy for county purposes includes an item of $52,300 for market roads, and another of $156,784.63 for improvement, maintenance, and construction of roads, bridges, and ferries, salaries of road masters, etc. Although the legislature has empowered the County Court to make a levy for such purposes, it has never directed it to do so, but has simply vested such discretionary power in the County Court. Whatever may be said in favor of good roads, it was never the purpose or intent of the legislature that county roads should be constructed and maintained at the expense of the public schools. For the one, it has said that the County Court may levy a tax, and for the other that it must do so. The same is true as to all similar items. The legal effect of what the County Court did was pro tanto to nullify a mandatory act of the legislature through the exercise of discretionary power vested in it by other legislative acts. •Authority to levy taxes is primarily vested in the legislature, and it cannot be presumed that it was ever the intent of that body to delegate that power to another or inferior board in such a manner as to defeat or impair its original right. If the County Court has a discretionary power to reduce the amount of the school fund which has been authorized by a mandatory law of the legislature, it must follow that it would have the legal right to ignore the law in-toto and to refuse to levy any tax whatever for school purposes. Within the constitutional limitation it would have the authority to take all money which the legislature intended for school purposes, and divert it to other uses within its discretion. That is not the law. We hold that as to the constitutional limitation the power of the County Court to levy a discretionary tax is subordinate to its mandatory duty to levy a tax under a specific act of the legislature.

The levy as made was a matter of public record, and at the time. the plaintiff had a legal right to compel the County Court to make it in the manner and form provided by law. Although the school district was not a party to the Jory suit, it had a right to intervene, and there litigate the questions which are now at issne. In effect, the plaintiff seeks in the instant proceeding to have this court set aside the action of the County Court and the restraining order issued against the defendant in the Jory suit. After the levy was made and the money was collected it was placed in special funds, the amount of which corresponds to the items in the different budgets. For this reason, the defendant contends that there is no fund to apportion or upon which a warrant can be drawn to meet the plaintiff’s demand, and that under the existing facts the attempted apportioning of any larger fund would be a vain act. With the county school superintendent as the sole defendant in the instant action, we do not know how any money in a county fund could be taken therefrom and placed in a school fund for the use and benefit of the plaintiff.

5. Although the County Court is authorized and directed by the legislature to make such a levy for school purposes, when made it is for the sole use and benefit of the various school districts of the county. The authority of the County Court then ceases. When the tax is collected it automatically becomes the money of the school districts according to their proportionate rights, and thereafter the County Court has no interest whatever in the fund. For the same reason, when a tax is levied for county purposes and is collected it becomes and is a county fund, to be used and expended for county purposes only, and no authority is anywhere given to transfer county money to the school fund, or school money to the county. Whatever may have been the legal duty of the County Court, the fact remains that within the 6 per cent limitation it levied a school tax of $8.25 per capita only, and that to provide for the deficiency it undertook to make an additional levy of $1.75 per capita over and above the 6 per cent limitation. Each of such levies is certain, separate and distinct from the other.

The order of the County Court in which the $8.25 per capita school tax is levied recites that on December 31, 1919, after a fully itemized estimate was duly made and published, “together, with notice of the time and place at which same might be discussed with the County Court,” and accompanied by a published statement “showing the total of all taxes for the ensuing year levied by any road or school district, city, town, municipality, port or other tax levying authorities within,” the jurisdiction of the County Court:

“This being the time ánd place fixed by the court for a hearing on said budget, said court met pursuant to said notice, in the county courtroom in the courthouse in the City of Salem, Oregon, to hear any argument of any.taxpayer subject to said tax levy in favor of of against any proposed tax levies, and whereas several taxpayers appeared for a discussion of said levies, and no objections being made or filed to any portion of said estimate, or the levying of any taxes described in the same, and it further appearing that- the amounts hereinafter stated are necessary and proper for the conduct of the respective branches of the county government and for the respective purposes indicated herein.

“It is, therefore, ordered and it is hereby determined and declared that the following amounts of taxes be levied upon the current assessment-roll, and that said amounts be levied for the purposes as hereinafter set forth.”

An itemized list of such taxes follows. It is further ordered that in order to raise said amounts and those certified by the state tax commission, the county assessor levy the following: For state purposes, $189,610.85; for county school and library purposes, $107,456.02; and for county purposes, $327,630.60, totaling $624,697.47. This is the order by which County Court made the levy of $8.25 per capita school purposes. Thereafter, and on the same the County Court made the following order:

“Now,on this 31st day appearing that pursuant to Section 4042 of Lord’s Ore-Laws as amended by Chapter 84 of the General Laws of Oregon for the year 1911 as, amended by Chapter 64 of the General Laws of Oregon for 1917, amended by Chapter 156 of the General Laws of Oregon for the year 1919, that in order to raise the amounts required by said acts of said legislatures it necessary to levy a tax on all the taxable property within Marion County in the sum of $25,470.08, over and above the taxes hereinbefore levied for the current year, and over and above the amount of tax levied for the preceding year for common sphool purposes plus 6 per cent thereof, (the said acts of the said legislatures having increased the amounts required for the above purpose in the amount of 25 per cent, over and above the amount levied for the said purpose in the preceding year, in addition to the increased amounts required to take care of the additional number of children of legal school age as appears by the school census).

“It is, therefore, and declared, that in compliance with the said acts of the said legislature a tax in the sum of $25,470.08 and the same is hereby levied upon all of the taxable property within Marion County; Oregon, for common and county school purposes in addition to the amount of $106,139.92 hereinbefore levied, and over and above the 6 per cent limitation provided by the Constitution of this state.”

Similar levies for different purposes, same manner, are included therein, making a total of $48,623.28. By this order the County Court levied tlie $1.75 per capita school tax. The collection of all of such levies is enjoined in the Jory snit.

6. The order providing for the $8.25 per capita tax recites that several taxpayers appeared for discussion of the levy; that no objections were made to any item of the estimate or the levy of any tax therefor, and that the amounts thereof are necessary and proper for the conduct of county affairs and the purposes indicated. That is to say, prior to the mahing of the original levy by the County Court all parties, including the plaintiff, had legal notice of the items and amounts thereof for which the levy was made, and no remonstrance was entered. Speaking from the record, the plaintiff had knowledge of and acquiesced in what the County Court did from December 31, 1919, to May 10, 1920, when this proceeding was commenced. This court will take judicial notice of the time when taxes are paid, and that the current expenses of the county are audited and allowed each month. It is fair to assume that at least half of such taxes have been collected to date, and that something near half of that amount has been expended for county purposes.

7. As stated, the county school superintendent is the only defendant in this action. That official has nothing whatever to do with the levying of taxes for any purpose, and has no authority over county funds. His sole duty in this matter is confined to certifying the number of children of school age in the various districts of the county, and apportioning the school fund to the districts when the tax has been collected. It appears from his answer that he has apportioned, and will continue to apportion as collected, all of the school tax which was levied by the County Court within the 6 per cent limitation, and that the county and its officers, including the defendant, are enjoined from collecting or paying ont any moneys received from tlie tax levied by the Connty Court over and above that limitation. Assuming that the plaintiff once had a prior right to have its tax levied by the County Court in preference to a discretionary tax for a number of items, there is nothing before this court from which it can be determined how much of such discretionary tax has been collected or paid out, or to whom it has been paid. The defendant does not have any knowledge of such facts, or any control over the fund, and he has no authority to make a transfer of moneys from one fund to another.

8. Assuming that in the ordinary course of business a large percentage of such tax has been collected and expended, that portion thereof, at least, has passed beyond the jurisdiction of this court, and the part remaining could not be ascertained or determined without an accounting with all of the necessary parties in court, which could not be had in this kind of a case. The county and the county treasurer would be necessary parties in any such proceeding. Under the authorities, even though the plaintiff did not intervene, it is not bound by the decree in the Jory suit. Neither is the fact that the defendant was enjoined there a defense to the present action. Yet many of the facts alleged in the answer and admitted by the demurrer are material and important to this decision.

After the two separate levies were made, as above stated, the tax-rolls were extended, showing the amounts of the levies, the purposes for which made, and to whom the money collected should be paid. The plaintiff has acquiesced in and permitted such acts to be done and the moneys to be collected and paid over to tlie county as its own, without any objection prior to the filing of its petition in this court on May 10, 1920. The time has long since passed for making another or different levy or revising or correcting the one which was made.

The answer alleged and the demurrer admits that there is no school fund which the defendant can now apportion or upon which a warrant can be drawn for the payment of $1.75 per capita for each pupil to the various school districts. This court has held that a county school superintendent cannot be compelled by mandamus to make an apportionment of the school fund among the several districts unless it is made to appear that there is some fund in the treasury available for that purpose: State ex rel. Booth v. Bryan, 26 Or. 502 (38 Pac. 618). There is no available school fund to meet the plaintiff’s demand in this action. Both parties cite and rely upon State ex rel. v. Stannard, 84 Or. 450 (165 Pac. 566, 571, L. R. A. 1917F, 215). That was a proceeding in mandamus by the state on the relation of the Governor, in which Stannard as county clerk, the sheriff, county judge, and commissioners were defendants, to compel them to give the necessary notices for a special election and to make provision therefor. That case was brought direct against the county officers who had the power and whose duty it was to prepare notices and provide for the election. They had refused to perform a duty enjoined upon them by law. The instant proceeding was commenced against the county school superintendent only, to compel him to apportion a school fund which is not shown to exist. A large portion of the tax had been collected and placed in the funds of the county, and was subject to the control of the county only. In the ordinary course of business a considerable part of it has been paid out, and the unexpended remainder is in the control and possession of the county, mingled with its other moneys, over which the county school superintendent, the only defendant in this action, has no authority.

Under the facts shown to exist here it was the legal duty of the County Court to make a levy for school purposes sufficient to raise at least $10 per capita for all children of school age within the county and to have made it all within the 6 per cent limitation. As at present advised, we do not know what remedy, if any, the plaintiff may now have. But in any proceeding all necessary parties should he made defendants, all material facts should he alleged, and the court should have jurisdiction of the subject matter and of the fund sought to be reached.

Ppr the reasons above stated the petition is dismissed. PetitioN Dismissed.

Harris, J., and Bean and Bennett, JJ., concur.