Stinson v. Thorson

Burke, J. Trial de novo. The complaint alleges that those defendants who comprised the Board of Education of the Independent-School District of the city of Grand Eorks have made a contract, with the other defendants for the erection of a new high school building; that, under § 183 of the Constitution, and § 1303, Comp. Laws 1913, the total debt limit of said district was 5 per cent of the 1914 assessed valuation of $4,737,845.00, or $236,892.25; that the said district was already bonded in the sum of $175,000; that there were available assets not to exceed $114,916.09; that “by reason of the fact as hereinbefore set forth, the contracts set forth in ¶¶ 8, 9, and 10 hereof are illegal, null, and void, and are without any valid or binding force, and are in excess of the constitutional and statutory limitations upon the debt of said Independent School District.” Judgment of the court was asked restraining the defendants from proceeding further under the terms of said contracts. The school board answered admitting the execution of the contracts, but in smaller sums than alleged in the complaint, and alleged that the total cost of said building, complete and fully equipped, will not exceed the sum of $180,000, not more than $160,000 of which will be due or payable until after July 1, 1916; that at the time the said contract was let the defendant board had, and now has, cash on hand, together with the 1915-16 tax levy anticipated and other assets, a sum exceeding the amount of said contracts. In allowing the temporary injunction the trial court filed a memorandum decision from which we quote: “It is but just, at the outset, for me to say that no charge of corruption, intentional wrongdoing, or personal gain was made against any of the defendants. In fact, counsel for plaintiff's stated in open — 378 — court that, in so far as they knew, the present board, including the secretary, as well as its predecessors, were men and women of the highest character and of known probity. That many of the errors complained ■of, especially as to methods of procedure, have been inherited from the past; that the system in vogue at the present time has been in continuous use for many years. Notwithstanding these facts, the plaintiffs allege that the method of making levies and of keeping the accounts are and have been illegal and void, and that no contract could be of binding force under the present state of affairs. The affidavit of Mr. Burchard, secretary of the board, among other things admits the following: ‘That the moneys levied by and received by such board have not at any time been kept in a separate and distinct fund, either on the books of the treasurer of said board or in the books kept in the secretary’s office; but that said moneys have always been kept as, and have been considered and used by, the board as moneys of the board which were available to be used for any expenditure which the board might authorize or direct (including new expenditures made for the erection of several new school buildings), and have been made out of said general fund. . . . That the money received by the board has on its records been kept in one general fund, showing,, however, the source of the receipt of the same, and that the same is true of the records of the treasurer of the board; that the disbursements have been entered on the treasurer’s books under the two heads of teachers’ fund and general fund, and that no other subdivision or classification of said disbursements has been made or attempted to be made on the treasurer’s books.’ ” The trial was had to the court, resulting in about 275 pages of evidence. The trial court made the injunction permanent, and in doing so used, in part, the following language: “I think I will give you my view of the matter right here and now. In the first place; I want to say that § 130 of our Constitution was not called to my attention at the former hearing, neither by counsel in argument nor in brief presented, and so, if that section had anything to do with the decision in this case on the preliminary hearing, — I mean if it should have had anything to do with it, — it did not have anything to do with the decision on the preliminary hearing. . . . They come into this court and say that, in one or two instances, in the neighborhood of $10,000 were levied for one purpose and not used, and can be turned over to — 379 — ¿mother purpose at the close of the year, because, forsooth, that fund has served its purpose for that given year. I do not believe the law -contemplates anything of that kind. . . .” Findings of fact and conclusions of law were prepared from which we quote: “That the contract entered into by the said defendants, the Board -of Education of Independent School District, with the defendants, W. J. Edwards, Healy Plumbing & Heating Company, Gray Construction 'Company, are, and at all times since the attempted entering of them, have been void and of no effect.” The defendant school board appeals to this court, demanding a trial de novo. We have set out the trial court’s memorandum opinion and the conclusion of law showing its theory of the case and its reason for granting the injunction. Respondents in their brief define their position as follows: “There is but one major question in this case and it may be stated substantially as follows: Has the board of education the right to divert moneys raised by taxation for the purpose for which the tax was levied,? Preliminary thereto there is the question whether or not the statute requires the board to levy taxes for specific purposes, and in connection therewith we call attention to the statutes which are quoted and summarized as follows: ■(§§ 1289-1296, inclusive).” And again: “And so the question of law is here squarely presented: Can the board make a levy for one purpose and then divert the funds raised thereby to another and totally different purpose?” And at the very last of his brief he says: “It is very clear that the appellants have not complied with the law and that the contracts are illegal and void.” We have set forth those extracts from respondent’s brief because they set a limit upon the questions which we will consider. An examination of the evidence leaves us in much doubt as to the facts. The school district has been in operation under one name or another for more than thirty years. During that time the law has been materially changed and more divisions required in the moneys levied by taxation. Acting upon a suggestion of the trial •court the secretary of the school board had a partial examination made of the books covering the years 1904-14. This statement was offered in evidence, but, having started at the beginning of the year 1904, is of ■little use to us. It is made the basis, however, of respondent’s claim that at that time (1904) the building fund was overdrawn more than $13,000, and that moneys levied during succeeding years for building — 380 — purposes should now be used in paying this overdraft, and, therefore, be unavailable for the contemplated building. This evidence is so unsatisfactory, however, that we do not believe it sufficient to support a finding to that effect. For example the secretary, in his testimony, was ashed: Q. Now, how much of the county apportionment fund did you have to make use of in order to bring the teachers’ fund up- to an apparent balance ? A. Well, if you go back to 1903, the time I started, we had used something like — in round numbers — $28,000. In view of the fact that in the early days the funds were not kept separate, we do not believe we can hold that there was an overdraft in 1910 in the building fund. At least, it is not established by competent evidence. Another question of fact which we may as well consider here is whether the school board, during the years 1910-14, levied money for the teachers’ fund with the intent to divert said fund to-building uses. While respondent makes this accusation, he furnishes us but scanty proof. To be true, the tax actually levied during those-years for teachers’ purposes exceeded the amount used for payment of the teachers, but that is fully explained by the superintendent of schools, who gave the following explanation: “. . . It has always been the theory of the board that any balance of money they had went into the general fund. They have only recognized the general fund.. And I know that when we have met to make these levies, that we have felt that we could not know definitely just how much money we were going to get from the different funds, the county tuition fund or the state apportionment funds, — or, at least, that has been the talk, — and we have made the levy ample to cover not only the payment of teachers, but we felt that if there was anything over, that it would go into the general fund, and I am absolutely sure that the board had no intention— because we had never levied to the limit on the building fund — no intention of putting that money in there for the purpose of a new high school building, only the purpose that, if there was anything left over there, that it could go into the general fund. And we have always built our school buildings here out of the general fund. We have never — 381 — had any building fund.” Respondent concedes that if the hoard in good faith over-levies in the teachers’ fund, and there remains an inconsequential sum, the law (not taking notice of trifles) will allow the transfer of said sum when the purpose for which it has been levied has been accomplished. Section 175, of our Constitution reads as follows: '“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.” This section has been before this court in State v. Klectzen, 8 N. D. 286, 78 N. W. 984, 11 Am. Crim. Rep. 324, and in the recent case of State ex rel. Linde v. Packard, 32 N. D. 301, 155 N. W. 666. Similar constitutional provisions have been construed in other states and the interpretation placed thereon by the various courts is thus treated at 37 Cyc. 728: “The constitutions of several states provide that every law imposing a tax shall state distinctly the object of the same to which only it shall be applied. It is held, however, ■that this applies only to the ordinary and general taxes for state purposes, and such as are imposed generally on all the taxable property in the state, and not to local taxes for local purposes, or to special taxes on peculiar kinds of property, or such as are in the nature of license or occupation fees; nor does the provision apply to laws which merely provide or regulate the machinery for assessing and collecting the tax. An exact enumeration of all the items of expenditure to which the revenue of the state may be applied is neither practical nor required by such a constitutional provision; it is sufficient if the tax law states in general terms that the taxes are to be applied to ‘ordinary and current expenses of the ’state,’ or to its ‘general fund,’ without further •detail.” Cooley on Taxation, 3d ed. vol. 1, pages 549-557, treats the subject in the following words: “There are similar provisions in the Constitutions of other states. . . . Provisions like the one recited may, nevertheless, prevent some abuses, and considerable importance has been attached to them. But the purposes of government are so infinite in variety that the specification must, for the most part, be very general •or the Constitution could not be complied with; and in New York it has been held that a statement in a tax law, that the money, to be raised is to be paid into the treasury, to the credit of the general fund, is a sufficient compliance with the requirement. . . . The provision — 382 — applies only to annually recurring taxes and taxes imposed generally upon the entire property of the state, and is not applicable to successive-taxes upon legacies or to local county taxes, or to laws authorizing the citizens of towns to impose taxes for bounties, or to statutes authorizing-special local assessments.” Numerous citations are appended to those two texts. See: Miller v. Henry, 62 Or. 4, 41 L.R.A.(N.S.) 97, 124 Pac. 197; Jones v. Chamberlain, 109 N. Y. 100, 16 N. E. 72; Re McPherson, 104 N. Y. 306, 58 Am. Rep. 502, 10 N. E. 685. Not only the authorities but the dictates-of common sense impel us to hold, as we do, that incidental balances levied in good faith and for the same general purpose, when the oi’iginal purpose has been served, may be transferred from one minor accoimt to-another without violating §. 175 of our Constitution. For instance, if a certain school board made a levy of $1,000 for repairs for the current year, and thereafter a fire occurred, doing damage to- the amount of $2,000, would it be contended that the school building must remain unrepaired for another year, until $1,000 in addition could be levied and raised, while there was $1,000 surplus in the teachers’ fund, accumulated in good faith and not needed for that purpose ? ' Furthermore, if the strict construction demanded by plaintiffs were allowed, it would prevent the transfer of moneys levied to pay the teachers in 1914 into-a fund to pay the same teachers in 1915. It must be kept in mind also-'that this is not an action to enjoin the levy of a tax nor to prevent its collection, but is an action to restrain the fulfilment of a contract made-by the board for the erection of a school building. Section 130 of the-Constitution — which, by the way, is not found in all of the states having-a section similar to § 175 — reads: “The legislative assembly shall provide by general law for the organization of municipal corporations restricting their powers as to levying taxes and assessments, borrowing-money and contracting debts, and money raised by taxation, loan or assessment for any purpose shall not be diverted to any other purpose-except by authority of law.” If this section applies to school corporations, — and we believe it does, — it, and not § 175, governs this case. It is our conclusion, therefore, that § 175 of the Constitution does--, not apply to cases like the present. Therefore, a court of equity ought not, and will not, in this case, interfere. Judgment of the trial court is. reversed.