Opinion
No. 26593.
February 2, 1925. Rehearing Denied March 2, 1925.
Appeal from Second Judicial District Court, Parish of Webster; Robert Roberts, Jr., Judge.
Consolidated suits by the Louisiana Arkansas Railway Company and by the Gulf Refining Company of Louisiana against the School Board of Webster Parish and others. Judgment for defendants, and plaintiffs appeal. Affirmed as amended.
D. Edward Greer, of Houston, Tex., and J.S. Atkinson and Frederick E. Greer, both of Shreveport, for appellant Gulf Refining Co. of Louisiana.
A.L. Burford, of Texarkana, Ark., and White, Holloman White, of Alexandria, for appellant Louisiana A. Ry. Co.
L.K. Watkins, of Minden, for appellee school board.
R.H. Lee, Dist. Atty., and D.W. Stewart, both of Minden, for appellee tax collector.
These consolidated suits were instituted by plaintiffs for the purpose of annulling a special tax of 2 mills on the dollar, voted by the duly qualified property tax payers of a school district, composed of the entire parish of Webster, on the assessed value of all property subject to taxation therein.
The first suit instituted was the one filed by the Louisiana Arkansas Railway Company. This suit seeks to annul the tax on the ground that it increases the special taxes on property in the Heflin School district, beyond 25 mills on the dollar, in violation of section 10 of article 10 of the Constitution of 1921, and moreover, that said tax, in said district, and also in the Doyline school district, and in Hortman school district A, makes the special taxes for additional support to the public schools, in said districts, exceed 8 mills on the dollar, in violation of said section of the Constitution. In the alternative, plaintiffs ask that, should said special tax of 2 mills on the dollar be declared legal, then a special tax of 5 mills, voted in said Hortman school district A on the same day that said 2-mill tax was voted, be declared null, as being in violation of the same section of the Constitution.
The Gulf Refining Company of Louisiana, in its suit as originally filed by it, sought to annul the 2-mill tax on the ground that the school board had no right to call an election throughout the entire parish for the voting of the tax, and hence, as it exercised a right which it did not have, that the tax is null. Later, the Gulf Refining Company adopted the allegations of the petition of the Louisiana Arkansas Railway Company, though it still insists on the alleged ground of nullity first asserted by it. Both suits were put at issue.
With respect to what may be termed the first phase of the case, the evidence introduced shows that, in 1919, the school board of Webster parish made the entire parish a school district, and gave it the name of the Webster parish school district, and that, in April of that year, the property tax payers of the newly created district voted a 5-mill tax for the support of the public schools thereof. This is the only special tax which had been voted and was being levied by the district at the time it voted and levied the 2-mill tax, in controversy. Adding the 2-mill tax to the 5-mill tax makes the total tax, voted by the taxpayers of the district and now being levied for the support of the public schools thereof, 7 mills on the dollar.
The evidence also shows that in June, 1922, the property tax payers of road district No. 2, which district, we infer, includes the Heflin school district, voted a special tax of 5 mills on the dollar on all property subject to taxation in said road district, for the purpose of constructing and maintaining roads and bridges therein. The evidence further shows that the property tax payers of the Heflin school district in January 1920, voted a tax of 5 mills on the dollar, to run for a period of seven years, for the purpose of building a schoolhouse in said district, and that in July of the same year, when there was no restriction on the millage that could be voted for school purposes, they voted a tax of 10 mills on the dollar, to run for a period of 10 years, for the purpose of constructing and equipping a school building in said district. If we add to the 15 mills voted by the district, which plaintiffs contend we should, the 7 mills voted by the Webster Parish school district, and to the sum thus obtained, the 5-mill road and bridge tax voted by road district No. 2 the sum will show, including the tax in controversy, a total of special taxes, which are being levied by various political subdivisions on property in the district, voted under section 10 of article 10 of the Constitution of 1921, and under the corresponding article of the Constitution of 1913, of 27 mills on the dollar.
Section 10 of article 10 of the Constitution of 1921, under which the 2-mill tax in controversy was voted, in so far as pertinent, reads:
"For the purpose of constructing or improving public buildings, school houses, roads, bridges, levees, sewerage or drainage works, or other works of permanent public improvement, title to which shall be in the public, or for the maintenance thereof, any political subdivision may levy taxes, in excess of the limitations otherwise fixed in this Constitution, not to exceed in any year five mills on the dollar for any one of said purposes, and not to exceed in any year twenty-five mills on the dollar, on any property, for all of said purposes; and for giving additional support to public schools, any parish, school district or sub-school district, or any municipality, which supports, or contributes to the support of, its public schools, may levy taxes, in excess of the limitations otherwise fixed in this Constitution, not to exceed, in the aggregate, on any property, in any year, eight mills on the dollar; provided, no special tax authorized by this section shall run for a longer period than ten years, and, provided further, that the rate, purpose and duration of any such special tax shall have been submitted to the resident property tax payers qualified to vote in the subdivision in which the tax is to be levied, and a majority of those voting, in number and amount, shall have voted in favor thereof. The provisions of this section shall not affect the validity of any tax levied by authority of an election held prior to the adoption of this Constitution. * * *"
Plaintiffs' first position is that the limitation of 25 mills on the dollar, prescribed in the foregoing section of the Constitution, is a limitation for all purposes, and even includes the 8-mill limitation prescribed in the section for additional support to the public schools, and plaintiffs therefore argue that, as the total of the special taxes, which are being levied on the assessed valuation of property in the Hortman school district by the several political subdivisions named, when the 2-mill tax in controversy is included, exceeds 25 mills on the dollar, the levy of said 2-mill tax contravenes said limitation, and is therefore null and void.
Plaintiffs commit two errors, in our view, when they take the foregoing position. The first is in assuming that the taxes, levied by the several political subdivisions named, should be added together in order to ascertain whether or not the limitation of 25 mills, contended for by them, has been exceeded in levying the 2-mill tax. The section of the Constitution which we have quoted, in so far as it is pertinent, does not contemplate that such a course should be pursued in ascertaining whether the limitation has been reached. To the contrary, the section contemplates that each political subdivision authorized to levy the tax provided by it shall be treated as a distinct entity throughout, and that the limitations imposed shall apply to each subdivision as a distinct entity, and hence that each subdivision shall remain unaffected in its right by the taxes imposed under the section by other political subdivisions in the same territory. See Hinton v. Winn Parish School Board, 155 La. 666, on page 673, 99 So. 523, on page 525. For instance, a parish, when authorized by the taxpayers in the manner prescribed, may levy taxes for the purposes named in the section, not to exceed for any one purpose in any year 5 mills on the dollar, and not to exceed in any year 25 mills on the dollar on any property for all of said purposes, and a municipality or any other political subdivision may do likewise, although the parish in which it is located may have reached its limitation, and the parish may do likewise, although the municipality or school district within it has reached its limitation. Were it otherwise, a municipality, for instance, which desired to vote a special tax under the section for the purpose of erecting a town hall, or a school district, which desired to vote such a tax to build a schoolhouse, might find itself unable to do so, simply because the parish in which it happened to be located had reached the limitation on special taxation imposed by the section for all purposes named in it. The constitutional convention intended no such situation or result, nor do we think that the section, when analyzed, admits of an interpretation that would bring such a situation or result about, yet an interpretation that would bring it about is necessary in order to sustain plaintiffs' position.
Moreover, plaintiffs' position cannot be sustained for the reason that in order to do so we would have to hold that the limitation of 8 mills on the dollar, imposed by the section, for additional support to public schools is included in the limitation of 25 mills. This we are unable to do, for, by the plain words of the Constitution, the latter limitation does not relate to additional support for public schools, but to the purposes specified in the beginning of the section.
Plaintiffs' second position involves the error discussed above, with respect to the adding together of the taxes of several districts, for the purpose of ascertaining whether the limitations imposed by the section have been reached in a given instance. Their position is that should we hold, which we have, that the limitation of 8 mills is not included in that of 25 mills, but is, in effect, a raising of the latter limitation in order to enable certain political subdivisions to provide additional support for the public schools, then that the limitation of 8 mills, for additional support for the schools, has been violated by the levy of the 2-mill tax in controversy, and in the alternative that a 5-mill tax voted by the Hortman district for the support of the schools therein, on the same day that the 2-mill tax, in contest, was voted, violates that limitation.
Arguing in support of that position, plaintiffs point out that, in the Heflin school district, prior to the adoption of the present Constitution, when there was no restriction as to the number of mills on the dollar that could be voted for school purposes, the district voted a 10-mill tax, which is still being levied, for building and equipping a schoolhouse therein. Plaintiffs argue that "equipping" properly comes under the head of "additional support" to public schools, and that, if the school board appropriated as much as 3 mills on the dollar of this tax for the purpose of equipping the schoolhouse, these when added to the 5-mill tax previously voted by the Webster Parish school district for the support of the schools of the district, exhaust the amount of the tax permitted for support, and therefore make the 2-mill tax in controversy, voted by the latter district, violative of the 8-mill limitation imposed by section 10 of article 10 of the present Constitution. Plaintiffs also point out that in the Doyline school district in May, 1923, a tax of 3 mills was voted by the district for the purpose of supporting the school therein, and of making an addition to the school building, and, while they do not attack the legality of this tax, they argue that, inasmuch as one-half of it is appropriated for the support of the school in the district, this half added to the 5-mill tax voted in the Webster Parish school district, for the support of the schools of the entire parish, makes the tax therein for school support 7 1/2 mills on the dollar, and hence that, when the 2-mill tax in controversy is added to those taxes, the sum obtained is such as to make the 2-mill tax violative of said section 10 of article 10 of the Constitution. And, with respect to the Hortman school district, it is also argued that a 5-mill tax for the support of the public schools therein, voted on the same day that the 2-mill tax in controversy was voted by the Webster Parish school district, when added to the 5-mill tax for the support of the schools of the parish previously voted by the latter district, makes said 2-mill tax violative of the 8-mill limitation imposed by said section, and, if the 2-mill tax should be sustained, then that the 5-mill tax voted by the district on the same day that the 2-mill tax was voted throughout the parish, should be declared violative of that section.
We may assume, for the purpose of determining whether or not the levy of the 2-mill tax in controversy voted by the Webster Parish school district is in contravention of the 8-mill limitation on taxes for the support of the public schools imposed by section 10 of article 10 of the Constitution, that the 10-mill tax, voted by the Heflin school district for constructing and equipping a schoolhouse should be counted, in so far as relates to equipping, a tax for the support of the public school of the district, as contended for by plaintiffs, and, as it is impossible to say what part of that tax should be so counted, we may assume also for the same purpose that all of it should be. We may assume likewise that one-half of the 3-mill tax voted in the Doyline school district for making an addition to the schoolhouse and for the support of the school therein should be counted for the latter purpose for which the tax was voted, as contended for by plaintiffs; or we may go even further and assume that all of that tax should be counted for the support of the school in that district. Still, after so assuming, it does not appear that the levy of the 2-mill tax in contest contravenes the 8-mill limitation imposed by said section of the Constitution. This is so because the Webster Parish school district, which voted and is levying the 2-mill tax, has voted and is levying, including that tax, only 7 mills on the dollar for the support of the schools, and because that district is not affected as to its right to levy taxes for that purpose by the taxes levied by other districts or political subdivisions under the section for the same purpose. In other words, in order to sustain plaintiffs' contention it is necessary to add to the 7 mills, which are being levied in the Webster Parish school district, the tax which we have assumed to have been voted, and which we assume is being levied in either the Heflin or the Doyline district, or which was in fact voted and is being levied in the Hortman district, for the purpose of supporting the schools, and this, as is the case with respect to the 25-mill limitation, section 10 of article 10 of the Constitution does not contemplate should be done, but to the contrary that section contemplates that each political subdivision authorized to levy this tax may do so up to the limit fixed, without reference to what the others have done. If the interpretation contended for by plaintiffs is correct, the result would be, as we have heretofore indicated in discussing the 25-mill limitation that, because some enterprising school district, perhaps in a remote corner of the parish, had voted and was levying an 8-mill tax for the support of the schools, a parish wide school district or a parish in which the remote district is located, which saw the need for a parish wide tax for the same purpose, could not vote and levy it. It seems obvious to us that the constitutional convention intended no such result. Nor can it be said that the convention intended that school districts should not exist, for it not only expressly recognizes them in the section, relating to these taxes, but recognizes sub-school districts also. We therefore conclude that plaintiffs' position cannot be sustained.
With respect to the 5-mill tax, voted by the Hortman school district on the same day that the 2-mill tax in contest was voted by the Webster Parish school district, our conclusion is that plaintiffs' alternative demand for the nullity of the tax should be rejected, for the reason that the tax is valid. This tax is the only tax voted by the district for the support of the schools thereof, and the number of mills voted and being levied by it is not in contravention of section 10 of article 10 of the Constitution.
The next question to be considered is the one raised by the Gulf Refining Company that the school board of Webster parish was without right to submit the proposition, to authorize it to levy the 2-mill tax, to the taxpayers of the entire parish, and was without right to levy the tax throughout the parish. We gather from the brief filed in support of this view that the position of the Gulf Refining Company really is that a school board has no right to create a parish wide school district for the purpose of levying a tax throughout the parish in which the board functions.
The school board of a parish is the governing authority of school districts created by it, and has authority to call elections for the submission of propositions to the taxpayers to authorize their respective districts to levy taxes under section 10 of article 10 of the Constitution. Section 3 of Act 152 of 1920.
The Webster Parish school district was created out of the territory of the entire parish of Webster by the school board of that parish in 1919. The school board was authorized to create the district out of the territory of the parish under the provisions of Act 81 of 1918. Since the creation of the district, but before the election was called for the voting of the tax, the act of 1918 was repealed by Act 152 of 1920, cited supra, but, by express provision, not so as to affect the existence of districts created under laws in force at the time of the repeal. In fact, it may be said that the act of 1920 provides for the creation of parish wide school districts in the same manner and for the same purpose as did the act of 1918. Section 1, 2, and 4 of Act 152 of 1920.
The Gulf Refining Company, however, argues that the existence of a parish wide school district, created for the purpose of voting and levying a tax, is inconsistent with section 10 of article 10 of the Constitution, and that any act which seeks to authorize the creation of such a district, or the calling of an election therein, to vote a tax, including Act 152 of 1920, is in conflict with said section, and therefore upon the adoption of the Constitution of 1921, under section 1 of article 22 thereof, ceased to exist. The position of that company seems to be that section 10 does not authorize two bodies covering the same territory to levy taxes, under section 10, and that, if a parish wide school district be permitted to do so, and does so, up to the limitation fixed in the section, such action will deprive the parish of its constitutional right to levy taxes, under the section, for school purposes, and, since the Constitution authorizes parishes to levy taxes for those purposes, and does not mention parish wide school districts, that the silence of the Constitution in this respect operates as a prohibition on such districts to vote and levy them.
We, however, see no inconsistency between section 10 of article 10 of the Constitution and the existence of a parish wide school district. The section expressly mentions school districts and sub-school districts as being among the political subdivisions authorized to levy taxes under the section, and while it does not mention parish wide school districts, yet it does not indicate how large or small the districts must be, but impliedly leaves the size of them to the legislative branch of the government. As the section mentions school districts and sub-school districts as well as parishes, and endows each with the power of taxation for school purposes, it necessarily follows that the Constitution contemplates that three classes of political subdivisions, at least, may exist, empowered to levy taxes for such purposes at the same time over the same territory. The fact that the school board may not have subdivided the entire parish into small or sub-districts does not alter the case. Hence we conclude that the inconsistency contended for does not exist.
In so far as relates to the danger of a parish wide school district taking away from a parish its right to levy taxes, under the section, for the support of the schools, there is none whatever. We have, in effect, decided that phase of the question in passing on the limitations of 8 and 25 mills.
The next question is one of attorneys' fees. The tax collector was made a party to this suit, and judgment was prayed for against him and the remaining defendants, decreeing the nullity of the taxes in contest, and ordering him not to collect the same. No injunction was applied for, and, of course, none was issued. The tax collector prays in reconvention for attorneys' fees.
As this suit is not one for the reduction of an assessment, or for the collection of taxes, and, as it is not an injunction suit to prevent the tax collector from proceeding with the collection of taxes, the demand for attorneys' fees should be rejected. Shaw v. Watson, 151 La. 907, 92 So. 375. The cases of Oden v. Industrial Lumber Co., 153 La. 734, 96 So. 549, and Simms Oil Co. v. Flanagan, 155 La. 565, 99 So. 450, cited by the tax collector, are not pertinent. The former was a suit to collect a tax, and the latter was an injunction suit to restrain the collection of taxes.
The lower court rendered judgment, decreeing the validity of the 2-mill tax, but in doing so sustained plaintiffs' alternative demand for the nullity of the 5-mill tax in the Hortman district, and, though it does not appear to be attacked, annulled the 3-mill tax in the Doyline district. The court also rendered judgment, allowing the attorneys' fees demanded. The judgment rendered therefore will have to be amended, under the answer to the appeal filed by defendants, and under the appeal taken by plaintiffs so as to conform to the views expressed herein.
For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be amended by reinstating said 5-mill tax in said Hortman school district and said 3-mill tax in said Doyline school district, and by rejecting said demand for attorneys' fees, and, as thus amended, that it be affirmed, plaintiffs to pay the costs of appeal.
O'NIELL, C.J., and BRUNOT, J., dissent, being of the opinion that the parish wide tax of 2 mills is null because it exceeds the limit of 8 mills on all property in the Hortman district and in the Doyline district, in which districts the special taxes for giving additional aid or support to the public schools are not contested.
ST. PAUL, J., dissents and files reasons.
Plaintiffs (taxpayers) seek to annul a certain parish wide tax of 2 mills on the dollar, voted September 23, 1923, for giving additional support to public schools, on two grounds:
(1) That in the Heflin school district special taxes had already been levied amounting to 25 mills on the dollar; which (they allege) is the constitutional limit for all special taxes (citing Const. 1921, art. 10, § 10, p. 85).
(2) That, in any event, there had already been levied for giving additional support to public schools, special taxes of 20 mills in the Heflin school district, 10 mills in the Hortman school district, and 8 mills in the Doyline school district, being equal to, or in excess of the constitutional limit on special taxes "for giving additional support to public schools"; which special taxes the Constitution declares are "not to exceed, in the aggregate, on any property, in any year 8 mills on the dollar." See Const. 1921, ut supra.
In the alternative plaintiffs pray that should said parish wide 2-mill tax be sustained, then that a certain 5-mill tax for giving additional support to public schools, voted by the Hortman school district on September 18, 1923 (the same day on which the 2-mill parish wide tax was voted), be declared null, or at least reduced to 1 mill, so as to bring the total of special taxes for additional support to public schools in said Hortman school district down to the constitutional limit of 8 mills (say 7-mill parish wide tax, plus 1-mill Hortman school district tax), and in the further alternative, even should said parish wide 2-mill tax be declared illegal, then that said Hortman school district tax be reduced to 2 (3?) mills, so as to bring the total of said special taxes in said district down to the constitutional limit of 8 mills (say 5-mill parish wide tax, plus 3 mills local).
Such is the substance of the complaint.
The defense claims that the taxes are all valid.
I.
The trial judge sustained the 2-mill parish wide tax, but annulled the 5-mill Hortman district tax, and also a 3-mill Doyline district tax, voted May 28, 1923, and both sides have appealed.
II.
The solution of the issues involved herein is dependent primarily upon the interpretation to be given to article 10, § 10, p. 85, Constitution of 1921; hence we quote, so far as applicable here:
"Section 10. For the purpose of CONSTRUCTING OR IMPROVING public buildings, school-houses, roads, bridges, levees, sewerage or drainage works, or other works of permanent public improvement, title to which shall be in the public, or FOR THE MAINTENANCE THEREOF, any political subdivision may levy taxes, in excess of the limitations otherwise fixed in this Constitution, not to exceed in any year 5 mills on the dollar for any one of said purposes, and not to exceed in any year 25 mills on the dollar, on any property, for all of SAID purposes; AND for giving additional support to public schools, any parish, school district or sub-school district, or any municipality, which supports, or contributes to the support of, its public schools, may levy taxes, in excess of the limitations otherwise fixed in this Constitution, not to exceed, IN THE AGGREGATE, on any property, in any year, 8 mills on the dollar; provided, no special tax authorized by this section shall run for a longer period than ten years, and, provided further, that the rate, purpose and duration of any such special tax shall have been submitted to the resident property tax payers qualified to vote in the subdivision in which the tax is to be levied, and a majority of those voting, in number and amount, shall have voted in favor thereof. The provisions of this section shall not affect the validity of any tax levied by authority of an election held prior to the adoption of this Constitution. * * *" (Italics and capitals ours.)
III.
From the foregoing it seems clear enough that special taxes may be levied, in excess of all other limitations, as follows:
(1) For the construction, improvement, and maintenance of permanent public works, including schoolhouses, provided such special taxes do not exceed 25 mills for all such purposes or 5 mills for any one purpose.
(2) And, for giving additional support to public schools, provided such special taxes do not exceed IN THE AGGREGATE, on any property, 8 mills on the dollar.
The construction and maintenance of a schoolhouse is one thing, and the support of the public school itself is quite another thing. Maintaining public schoolhouses means holding, keeping, preserving them, in their existing condition; supporting public schools, means operating them. See Orleans Parish School Board v. Murphy, 156 La. 925, 101 So. 268. And the Constitution authorizes taxes for both purposes, and says very plainly that both the 8-mill tax for the support of public schools, and the 5-mill tax for the construction and maintenance of schoolhouses (within the 25-mill limit) may be in excess of all other limitations. Hence the 8-mill tax for the support of public schools is not within the 5-mill limit of special taxation for construction and maintenance of schoolhouses; nor yet within the 25-mill limit of all special taxation for the construction and maintenance of permanent public works. The limit of special taxes under said section 10 is therefore 33 mills on the dollar, not 25 mills as contended for by plaintiffs. And, accordingly, plaintiffs' first ground of attack on the 2-mill parish wide tax is not well founded.
IV.
The section provides that special taxes for additional support to public schools shall not exceed, in the aggregate, on any property, 8 mills on the dollar.
It has been suggested, however, that this means only that the aggregate of all such special taxes collected under any one authority shall not exceed 8 mills, and that some other governing authority or authorities in school matters may also levy additional school taxes, provided that in each instance such taxes do not exceed, in the aggregate, 8 mills on the dollar; that is to say (and the contention is) that a parish (or parish wide school district) may levy 8 mills for school purposes; that a sub-school district within said parish may also levy 8 mills for the same purpose; and a municipality within said sub-school district an additional 8 mills — making in all 24 mills on property situated within the municipality, viz. 8 mills levied by each one of these different authorities; the taxes imposed by each authority not exceeding, in the aggregate, the 8-mill limit.
It is further suggested that the same applies as well to the 25-mill limit, so that a parish might levy 25 mills for public works — say 5 mills for a new courthouse, 5 mills for schoolhouses, 5 mills for roads, 5 mills for a bridge, and 5 mills for sewerage or drainage; that none the less a school district might still levy 5 mills for an additional schoolhouse; a road district (coextensive with said school district) another 5 mills for roads; and a municipality (within said school district and road district) still further levy 25 mills, say, 5 for a townhall, 5 for a bridge or viaduct, 5 for drainage, 5 for sewerage, and 5 for street repairs. Say all together 60 mills of special taxes, plus 24 mills, or 84 mills in all (which might be increased if further examples were sought), in addition to the regular state, parish, municipal, and levee taxes.
In other words, under such a contention there would simply be no limit to special taxes so long as they were levied under different authorities, and so long as each several authority levied only 5 (or 8) mills for any one purpose or 25 (or 33) mills for all purposes. That is to say, the rate of special taxes might appear to be limited, but since the number of taxing authorities, each taxing the same property, would be unlimited, it follows that the amount of special taxes to be paid by any one piece of property would be limited only by the unwillingness of the property holders to vote them.
Such was the condition under the Constitution of 1913, and accordingly we find that, prior to the adoption of the Constitution of 1921, the Heflin school district had already voted 5 mills for roads, 5 mills for parish wide school purposes, and 15 mills for local school purposes. These are all valid taxes, so recognized by the section above quoted.
But the Constitution of 1921 apparently meant to put some limit on special taxes; otherwise why say that special taxes for constructing and improving works of public improvement were "not to exceed in any year 25 mills on the dollar, on any property, for all of said purposes." Certainly, if that limitation was to apply only to each several taxing authority, it would have been otherwise expressed; it would not have been said simply that special taxes for all purposes ON ANY PROPERTY shall not exceed 25 mills.
Our conclusion is that the constitutional limitation of 25 mills for all purposes of public improvement, on any property, means simply that no property shall be taxed, by whomsoever, more than 25 mills for such purposes; that the constitutional limit of 8 mills, in the aggregate, for additional support for public schools, means simply that the aggregate of all taxes for such purpose, by whomsoever imposed, shall not exceed 8 mills on any one property.
It is said that the public schools cannot be conducted as they should be upon such meagre allowances, and that it would be a hardship upon a municipality which needed a new townhall, or required a new sewerage or drainage system, that it should find itself handicapped by the fact that the parish had already exhausted the 25-mill tax limit, etc.; that the Constitution intended no such far-reaching consequences.
That is merely arguing ab inconvenienti, and the only answer is that the Constitution did nevertheless limit the total of special taxes for the support of public schools to 8 mills in any year, and the total of special taxes for public improvements to 25 mills.
Whether the constitutional convention ought or ought not to have placed a limitation on the right of the people to tax themselves (by their own vote) is neither here nor there. The fact is that it did so, and it is the plain duty of this court to so declare.
V.
In considering whether the 2-mill parish wide tax for the support of the public schools be or be not valid, it is incumbent upon us to inquire into the extent of the special taxes in any part of the parish already validly imposed; for of course a tax must operate uniformly throughout a taxing district, and, if it cannot be levied in one part thereof, it cannot be levied in any other part, since "all taxes shall be uniform upon the same class of subjects throughout the territorial limits of the authority levying the tax." See Const. 1921, art. 10, § 1, p. 81. But, on the other hand, a validly imposed tax cannot be defeated by the alleged exhausting of the taxing power, if in point of fact the prior tax be itself invalid.
Thus a 5-mill special tax imposed by a village council, without the vote of the people, to build a new townhall, could not be counted in the 25-mill special taxes which a parish may levy by vote of its people, even if the taxpayers have not resisted it; for their voluntary payment thereof cannot make such a tax valid, and any one may at any time resist further payments. One cannot pay (or offer to pay) an alleged tax which he need not pay because it is not valid, and at the same time refuse to pay a validly imposed tax, on the ground that the invalid tax has already exhausted the limit of taxation. The proper course to pursue is, of course, to resist the invalid tax, and pay the valid tax.
For otherwise the validity of a tax would be dependent not upon the law, but upon the willingness of the taxpayer to pay. Thus in the examples above given further special parish taxes might be valid if the taxpayers chose to pay those taxes and resist the village tax, but they would be invalid if the taxpayers chose to pay the village tax and resist the parish taxes. Which, of course, cannot be true. Thus:
"Where the constitutional limit for the total state levy has been exceeded, the relative priority of both general and special taxes is fixed by the date when the acts providing for each took effect, giving preference, however, to levies to meet appropriations for the support of the executive, legislative, and judicial departments." 37 Cyc. 764, No. 81, Citing People v. State Board of Equalization, 20 Colo. 220, 37 P. 964.
The reason being, of course, that a tax necessary for the support of the government cannot be shut out and defeated by a non-essential tax, even though the levy thereof be prior in point of time. Much less, therefore, can a valid tax be shut out and defeated by an invalid tax, even though the levy of the latter be prior in point of time.
VI.
It is therefore necessary for us to examine the status of the special taxes in the three school districts heretofore mentioned, viz. the Heflin district, the Hortman district, and the Doyline district.
In all three districts we find a parish wide tax of 5 mills for the support of the public schools voted April 1, 1919, for ten years (1919-1928). Therefore there remains only a matter of 3 mills more that might be levied for the same purpose. If there be in any one of said districts valid special taxes to that extent already levied for such purpose, then the parish wide tax of 2 mills, herein complained of, cannot be sustained. If, on the other hand, there be in said three districts only the one 5-mill parish wide tax aforesaid, then there still remains in the parish power to levy, not only the 2-mill tax complained of, but even 3 mills; and the 2-mill tax must be sustained.
VII.
In the Heflin school district, we find only the aforesaid parish wide tax of 5 mills for the support of the public schools. We find, however, a 5-mill tax voted February 24, 1920, for seven years (1920-1926) "the proceeds of the said tax to be used in building in the said district," and we find also a 10-mill tax voted July 12, 1920, for ten years (1920-1929) "the proceeds of the said tax to be used in constructing and equipping a school building in said district."
We consider the equipment of a school building (desks, seats, platforms, blackboards, etc.) to be necessary and permanent fixtures thereof, as much a part of the building (when intended and used for school purposes) as the very roof and flooring thereof; just as the bench, the bar, the witness stand, etc., are necessary and permanent fixtures of a courtroom, and constitute an integral part thereof (when used for court purposes), as much so as the walls which inclose it. Hence this 5-mill tax and this 10-mill tax are special taxes for permanent public improvements, and no part thereof can be used for the support (i.e. operation) of the schools. Orleans Parish School Board v. Murphy, 156 La. 925, 101 So. 268. (Note. — These taxes were voted prior to Constitution of 1921; hence they are saved by section 10, and do not come within the 5-mill limit for any one purpose. They affect only the 25-mill limit which we have heretofore discussed. Likewise the 5-mill road tax in this district, voted June 10, 1922, for ten years [1922-1931], affects only the 25-mill question.)
Accordingly we find in this district only the aforesaid 5-mill parish wide tax of April 1, 1919, available for the support of public schools, thus leaving here a margin of 3 mills for the support of the public schools.
VIII.
In the Hortman school district, we find, of course, the 5-mill parish wide tax of April 1, 1919, for the support of the public schools. We also find a 5-mill tax voted in this district on September 18, 1923 (the same day on which the parish wide 2-mill tax was voted). This tax was voted for five years (1923-1927) "the proceeds of said tax to be used to give additional aid to the public schools in Hortman school district." This tax, if valid, affects and more than exhausts in that district the limit of 8 mills which may be voted "for giving additional support to public schools."
But we think this tax invalid, for this reason: The tax was submitted to, and voted upon by, the voters of the whole school district; but the ordinance submitting the tax provided that the distribution of the tax should be as follows: The district should be divided into two (equal?) parts by a north and south line; all taxes collected from east of said line to be used for schools on the east thereof, and all taxes collected from west of said line to be used for schools on the west thereof.
Now the practical effect of this was that the Hortman school district was divided into two sub-school districts, one lying east, and other west, of said north and south line, and that two distinct taxes (which though equal were yet for separate purposes) were submitted to the voters. But, instead of submitting these separate taxes in each subdistrict, to the qualified voters of that subdistrict alone, the school board submitted both taxes to the joint voters of both subdistricts, and accordingly one or the other of said two subdistricts had it (or might have had it) within its power to force a tax upon the other. But the Constitution (as above quoted) requires that such special tax shall be "submitted to the resident property tax payers qualified to vote in the subdivision in which the tax is to be levied."
Our conclusion is that such a method of submitting a tax question is not within the contemplation of the Constitution. The wealthier and more populous section of a district might thus force a tax upon the poorer and less populous section, and yet keep the lion's share of the taxes for itself. If the purses are to be kept separate, then the taxing power should also be separately exercised. And the very evident purpose of this "gerrymandering" was to circumvent the prohibition, in section 2 of Act 152 of 1920, p. 231, against the creation of sub-school districts in a school district other than a parish wide school district. The whole proceeding is null. R.C.C. 12. Hinton v. Winn Parish School Board, 155 La. 666, 99 So. 523.
Accordingly we find in this district also only the aforesaid 5-mill parish wide tax of April 1, 1919, available for the support of public schools, thus leaving here also a margin of 3 mills for the support of the public schools.
IX.
In the Doyline school district we find the 5-mill parish wide tax of April 1, 1919, for the support of the public schools. We also find a 3-mill tax voted May 28, 1923, for ten years (1923-1932) "the proceeds of said tax to be used in giving additional aid to the public schools of said district, and for making additions to the present building."
We think this tax invalid for the following reasons: The Constitution (section 10, above quoted) provides for special taxes for two separate purposes — to wit, first, for constructing school buildings; secondly, for operating the schools — and places separate and different limitations on each, viz. 5 mills (within the 25-mill limit) upon the first, and 8 mills (beyond the 25-mill limit) upon the second. It does not merely authorize a 13-mill tax for construction and support, to be distributed or used for either or both purposes in the discretion of the school board; say 10 mills for construction and 3 mills for support, or 10 mills for support and 3 mills for construction; or perhaps 13 mills for construction and nothing for support, or 13 mills for support and nothing for construction. For the Constitution says the "rate, purpose and duration" of such taxes must be approved by the voters, and the purpose of a tax cannot be intelligently voted upon, unless it be distinctly stated. The Constitution nowhere authorizes the voting of taxes to be used by the school board according to its own discretion; the voters must determine the purpose of the tax, and by this we understand that the voters must know and approve of the application of said tax to some one designated purpose. The Constitution uses the word purpose in the singular not in the plural (purposes), and, whilst it might perhaps be permissible to group together as one, two or more related purposes, as to which the same limit of taxation applies, it is certainly not permissible to group two different purposes governed by two wholly different limitations. The reason is that it should be possible for the taxpayer (and the courts) to see whether the particular limit applicable in either case has been reached, without having to inquire into the use to which said tax had been put in any given year.
Thus, for instance, if a school district had already voted 3 mills for construction and 5 mills for support, and were to vote another 5 mills for construction and support, without designating the millage to be used for each purpose, then (if that were permissible) the validity of this last would depend upon how the school board would apply that tax, having clearly the right to use its own discretion under the tax ordinance. So that, if the board used 3 mills thereof for construction, and only 2 mills for support, the 5-mill construction limit would be exceeded; or, if the board used 4 mills thereof for support and only 1 mill for construction, then 8-mill support limit would be exceeded.
Or, say that a parish had used 20 mills for other construction purposes, and desired to levy 5 mills additional in a school district where a floating tax of 5 mills had been voted for support of public schools and for construction of schoolhouses. Then the validity of the parish wide 2-mill tax would depend upon the manner in which the school board had used the 5-mill floating tax for that year. If all of it had been used for support, then the 5-mill additional parish wide tax would not exceed the 25-mill construction limit; but if any part of the floating 5-mill district tax had been used for construction purposes, then the 5-mill parish wide tax would exceed the 25-mill limit in that district.
In other words, the legality of the parish wide 5-mill tax would depend on how the school board shifted the 5-mill floating tax from year to year. In those years in which the whole of it was used for support, the parish 5-mill tax would not exceed the 25-mill limit; whilst in those years in which the whole 5-mill district tax would be used for construction, the 5-mill parish tax would exceed that limit. And there we would be with a nondescript tax, valid one year, invalid the next, or vice versa.
Our conclusion is that the Constitution does not authorize the levy of a single tax for the double purpose of constructing schoolhouses and supporting the schools, leaving to the school board the right to use said tax wholly for either purpose, or partly for both. Special taxes for the support of schools must be voted for separately from taxes for building schools and special taxes for building schools must be voted for separately from taxes for the support of schools. Otherwise we would find ourselves unable to say whether the limit of such taxes had been reached in any given case since the shifting of the tax (or its proceeds) from the one purpose to the other and back again would constantly affect that limit and make it meaningless.
This 3-mill tax being null, we find again in this district only the aforesaid 5-mill parish wide tax of April 1, 1919, available for the support of the public schools, thus leaving here also a margin of 3 mills for the support of the public schools.
X.
The parish therefore still has a margin of 3 mills available for the support of the public schools, and accordingly its levy of 2 mills for that purpose on September 18, 1923, did not exceed the constitutional 8-mill limit.
XI.
The trial judge, as we have said, sustained the 2-mill parish wide tax, but annulled the 5-mill Hortman district tax and also the 3-mill Doyline district tax.
Plaintiffs say in their brief:
"The district court, in its efforts to sustain the parish wide 2-mill tax, without any reason set aside the 3-mill tax in the Doyline district as illegal. It is not known on what grounds it is illegal in itself, and, further, no ground of illegality was set forth in the petition or answer. It is presumed that the court wanted to sustain the parish wide tax of 2 mills, and for this reason, on its own volition, declared the 3-mill tax, being a smaller tax, illegal to give effect to the larger tax. (Italics ours.)
Aside from the fact that it is quite permissible for a court to incline favorably towards the enforcement of a tax levied for a purpose which every one approves, if it can do so without violating the law, our very high regard for the learning, ability, and fairness of the district judge led us at once to conclude that (although he had assigned no written reasons, yet) he could not have acted purely arbitrarily, and must have had (or thought he had) good reason for what he did. We do not know by what route he reached his conclusions; but we do know that they are correct. And we have given our reasons for thinking so.
The fact that the Doyline district tax of 3 mills was a smaller tax than the parish wide 2-mill tax is of no consequence whatsoever. The question under consideration was, and had to be, which of these two taxes was the valid tax and which the invalid one. Nor could it make any difference in considering that issue that, in attacking the validity of the 2-mill parish tax, plaintiffs refrained from questioning the validity of the 3-mill district tax, making the existence of that 3-mill tax the basis of their attack on the 2-mill tax. For, as we have said before, the validity of the 2-mill parish tax depends essentially upon the illegality of the 3-mill district tax. If the 3-mill tax be legal, then the 2-mill tax is necessarily invalid, and, if plaintiff may by refraining from questioning the validity of the 3-mill tax shut off any inquiry into the legality of that tax, then we do not see wherein arises any question of law worthy of serious consideration. For, if that were true, then the opinion of this court would necessarily have to be (substantially) as follows:
Major Premise. The constitutional limit of 8 mills has been reached in the Doyline district by the 5-mill tax plus the 3-mill tax.Minor Premise. Plaintiffs admit the validity of all these taxes, and hence their validity cannot be questioned by the court.
Conclusion. Therefore the court must hold that the additional 2-mill parish tax will exceed the 8-mill limit and is invalid.
But, as we have already said, and now repeat, the fault lies with plaintiff's minor premise; plaintiff cannot admit the validity of the 3-mill tax, make that the ground of attack on the 2-mill tax, and thus abruptly shut off all inquiry into the validity of the 3-mill tax.
As to the district court having annulled the Doyline district 3-mill tax "on its own volition," plaintiffs overlook the fact that in their several petitions and supplemental petitions they have prayed:
"For general relief.
"For all further orders and decrees necessary (and for) general and equitable relief.
"For any other judgment favorable and beneficial to plaintiff that may be warranted by the law and the evidence on the trial of this case, and for all necessary orders and decrees, and general, full and equitable relief."
And manifestly, when plaintiffs have unsuccessfully attacked the wrong tax, upon the hypothesis that there is another valid tax (which accordingly they do not specially attack), the only GENERAL, FULL, and EQUITABLE relief which can and ought to be granted them is to relieve them of the illegal tax. In that respect the judgment is certainly "favorable and beneficial to plaintiffs" under the circumstances.
As to the suggestion that "no ground of illegality (as to the Doyline 3-mill tax) was set forth in the petition or answer," it suffices to say that the petition sets forth, and the record discloses, all the facts necessary to decide upon the legality vel non of the 3-mill Doyline district tax. That question of law arises on the face of the record, and it is immaterial that counsel have not suggested it, since the examination of that point was not only pertinent to the issue involved, but absolutely essential for a correct solution of that issue.
XII.
The Gulf Refining Company, one of the plaintiffs herein, also attacks the right of the Webster Parish school board to submit a proposition for a parish wide school tax of any sort, arguing that under sections 1 and 2 of Act 256 of 1910 all propositions for parish wide special taxes must be submitted by the police jury of the parish. There is no merit in the contention. Those sections say that a school district is a political subdivision of the state, and that the governing authority thereof is the parish school board; that the submission of a proposition for a special tax in any subdivision may be submitted by the governing authority thereof. Act 81 of 1918 authorized the creation of parish wide school districts; Act 152 of 1920 again authorizes the creation of parish wide school districts, and also recognizes all existing school districts.
We fail to see wherein these statutes conflict with section 10 of article 10, Const. of 1921, quoted above. On the contrary, that section recognizes almost in words parish wide school districts, for it authorized in words special taxation in school districts and sub-school districts at a time when, under section 2 of Act 152 of 1920, there could be no sub-school districts except in parish wide school districts. Under such circumstances, to recognize sub-school districts was necessarily to recognize also parish wide school districts. (Note. — The parish wide school district was created by ordinance of the Webster Parish school board on February 21, 1919, under authority of Act 81 of 1918.)
XIII.
The specific relief asked for by plaintiffs was that the 2 per cent. tax be declared null; that same be canceled on the tax rolls; and that the tax collector be ordered "not to collect" said tax; but no preliminary injunction was obtained or even asked for.
The district judge condemned the plaintiffs herein for 10 per cent. attorneys' fees on the amount of the 2 per cent. tax due by them. This was error. In Shaw v. Watson, 151 La. 893, 907, 92 So. 375, this court held, the writer hereof dissenting, that under paragraph 2, § 56, of Act 170 of 1898, attorney's fees were due the tax collector only in three cases: (1) In a proceeding for a reduction of assessment; (2) in a proceeding for the collection of taxes; and (3) in an injunction suit to prevent the tax collector from collecting taxes, meaning a suit "accompanied by a preliminary injunction." That was a suit to cancel an assessment, and it was held that the tax collector was not entitled to attorneys' fees. This is a suit to cancel a tax, and is "not accompanied by a preliminary injunction." Under the authority of that case attorneys' fees cannot be allowed here. In that particular the judgment appealed from must be reversed; in other respects the judgment is correct and must be affirmed.
I therefore dissent, and think the decree should be as follows, viz.:
The judgment appealed from is therefore affirmed in so far as it declares the validity of the 2-mill parish wide tax for the support of the public schools, voted September 18, 1923, and in so far as it annuls the special tax of 5 mills voted in the Hortman school district on the same day, and also in so far as it annuls the special tax of 3 mills voted in the Doyline school district on May 28, 1923. And said judgment is reversed in so far as it condemns plaintiffs for attorneys' fees on said 2-mill tax, and accordingly the sheriff and tax collector is now ordered to collect said 2-mill tax from plaintiffs, with interest, but without attorneys' fees; all costs in both courts to be borne by the Webster Parish school board.