Lowden v. Excise Board of Texas County

GIBSON, J. This is an appeal from a *144 judgment of the Court of Tax Review denying plaintiffs in error’s protest of a portion of the levy made by the excise hoard of Texas county for the sinking fund of independent school district No. 61. The controversy arose as a result of recent annexation of territory to said district. The sinking fund levy was not extended to this new territory, but was confined to the original area embraced in the district, thus burdening the latter with a levy in excess of the millage that would have been necessary had the levy been extended to the valuation of the new territory. The excise board in excluding the annexed territory acted pursuant to an order of the county superintendent directing that the annexation be made without obligation on the part of the annexed territory for the present indebtedness of the independent district. The order of the county superim tendent was allegedly promulgated and issued under authority of that portion of article 9, chapter 34, S. L. 1936-1937, amending section 6860, O. S. 1931, which reads as follows; “Territory annexed to an independent school district under the provisions of this •section shall assume only such portion of the bonded indebtedness .existing in said independent district at the time the territory is annexed, as the county superintendent may approve and certify to the county clerk and county treasurer and as may be determined to be a proper proportion thereof under any proposal submitted by the school district board of the district to which territory is to be annexed.” The legality of the annexation is not in •dispute here. '' Protestants say the judgment of the Court of Tax Review sustaining the alleged excessive levy is contrary to law in that the aforesaid order of the county superintendent upon which said judgment .was predicated was illegal and void. It is here urged that the above-quoted portion of the statute constitutes an unauthorized delegation of legislative power in- violation of article 4 of the Constitution, and, as a general law, will fail of uniform application throughout the state in violation of section 59, article 5, of the Constitution. It is urged that in striking down the aforesaid amendment as unconstitutional the original provisions of section 0860 will remain, in force, and that by virtue of said section the annexed territory was subject to , the levy for sinking fund purposes. Protest of St. Louis-S. F. Ry. Co., 164 Okla. 229, 23 P.2d 699. This contention is correct. If the amendment cannot stand, the annexed territory was subject to the levy in question and the Court of Tax Review should have sustained the protest. The correctness of the millage under protest is not questioned. In the last-cited case we held as follows: “All property subject to taxation legally annexed to an independent school district under the provisions of section 10405, C. O. S. 1921, is subject to taxation to pay its full proportion of all legal bonded indebtedness existing against said district at the time such territory is annexed. Common School Dist. No. 49 v. Wolfe, 94 Okla. 87, 221 P. 42.” Section 10405 therein mentioned is the same as section 6860, above, prior to the aforesaid amendment. See, also, Missouri-Kansas-Texas R. Co. v. Excise Board, 181 Okla. 229, 73 P.2d 173. The question here is one pertaining entirely to ad valorem taxation and therefore of legislative concern. The Legislature, acting pursuant to the Constitution, establishes a uniform system of ad valorem taxation, including the methods of levying and collecting such taxes. These powers are not to be delegated to administrative agencies, but it may confer upon such agencies the power to place the system in operation. The protestants say the Legislature has gone beyond that point in the instant case. But, as we view the matter, the amendment constitutes an attempt, not to delegate legislative powers, but to confer upon ministerial officers a function of sovereignty which the Legislature itself did not possess. It would authorize the county superintendent in conjunction with the school hoard of the independent district to inaugurate a system of unequal ad valorem taxation to the point of exempting a portion of the tangible property of a tax district from levy and assessment for a purpose common to all the taxable property of the district. The property in. question, the annexed territory, is not within those classes designated as exempt from taxation (section 6, art. 10, Const.), but is subject to general ad valorem assessment (section 8, art. 10, Const.). It falls within a common class and must be uniformly taxed for the purposes common to the entire district. . When new territory is added to an independent district, it must be uniformly taxed for the purpose of retiring the existing indebtedness in such district. There *145 is nothing in the Constitution that would authorize a different course; there is no authority for exempting it from the burdens out of which its advantages are to grow. No other conclusion would satisfy the uniform taxation clause of the Constitution. The Legislature cannot waive or authorize the waiver of that requirement. Neither can it confer the power to contract it away. The judgment of the Court of Tax Review is reversed and the protest is sustained. The time within which petition for rehearing may be filed is limited to five days. BAYLESS, C. X, WELCH, Y. C. X, and RILEY, OSBORN, CORN, and DANNER, XX, concur. HURST and DAYISON, JX, concur specially.