State ex rel. Board of Education v. Minor

LEWIS, J. Mandamus proceedings to compel the county auditor of Hennepin county to extend upon the tax rolls of said county for the year 1899 the tax and levy of nine-tenths of one mill on each dollar of the assessed valuation, which had been levied by a resolution of the board of education of Minneapolis under and pursuant to Laws 1899, c. 77. The court below granted the motion, of relator and ordered a peremptory writ to issue commanding said levy to be extended. Thereupon judgment was entered and the auditor appealed. The only question involved is the constitutionality of chapter 77, which is attacked upon the ground that it is special legislation. In the case of State ex rel. v. Johnson, 77 Minn. 453, 80 N. W. 620, a similar law was under consideration and by a divided court held to be unconstitutional. In view of the fact that that decision was not the expression of the united court, is of such recent date, and the matter involved being of unusual importance, the construction of the constitutional enactment which has been the source of much legislation and litigation, we have' concluded that the decision referred to should not be regarded final upon the doctrine of stare decisis. With all due deference therefore to the learned justices who gave expression to their views in that case, we proceed to a re-examination of the questions there passed upon. Section 1 of chapter 77 reads as follows •. “School districts now or hereafter having over fifty thousand inhabitants are hereby empowered to raise annually by taxation, independently of and in addition to other sums for school purposes authorized by law, an amount not exceeding one and one-half mills on each dollar of the assessed valuation of taxable property within such district for the purchase of school sites,” and other school purposes. “Sec. 2. This act shall be construed as an independent and sep arate grant of power and shall in no wise supersede existing provisions of law for raising revenue for the support of schools, whether under general or special laws, but the powers here given may also be exercised concurrently with other powers and to provide a greater revenue for the schools within such district, limitations of power under existing laws notwithstanding.” — 203 — The constitutional provisions in reference to special legislation (Const, art. 4), are, so far as here important, as follows: Sec. 33. “In all cases wThen a general law can be made applicable no special law shall be enacted; and whether a general law could have been made applicable in any case is hereby declared a judicial question, and as such shall be judicially determined without regard to any legislative assertion on that subject. The legislature shall pass no local or special law regulating the affairs of, or incorporating, erecting or changing the lines of any county, city, village, township, ward, or school district, * * * regulating the management of public schools, the building or repairing of school houses, and the raising of money for such purposes * * *. The legislature may repeal any existing special or local law, but shall not amend, extend, or modify any of the same. Sec. 34. “The legislature shall provide general laws for the transaction of any business that may be prohibited by section one (sec. 33) of this amendment, and all such laws shall be uniform in their operation throughout the state.” We deem the provisions of section 2 of said chapter 77 to constitute an attempt on the part of the legislature,to declare the act to be a general law, and we therefore decline to give this section any consideration. The act must stand or fall independently of such declaration of intent. As stated in State ex rel. v. Johnson, supra, the cities falling within the class are Minneapolis, St. Paul, and Duluth and, under the special laws in force prior to the passage of chapter 77, the maximum limit of taxation for school purposes in Minneapolis was four mills, in St. Paul two and one-half mills, and in Duluth, under the general laws, fifteen mills on the dollar. Appellant contends that chapter 77 is a special law because it cannot operate uniformly in its application to all the members of this class; that the rate in Minneapolis would be increased to five and one-half mills, in St. Paul to four mills, and in Duluth to sixteen and one-half mills; and in order to ascertain what the maximum rate is in Minneapolis or St. Paul under chapter 77, resort must be had to the special laws governing those cities, and that this is in effect an amendment to said special laws; that the result is a lack of uniformity, and hence fatal under section 34. Again it is contended that, even if the law is uniform in its application to the several — 204 — cities, yet it cannot be enforced without adopting the special legislation contained in the various charters relating to levying, certifying, and collecting the tax. Upon the question of the uniformity of the law as affected by the additional levy of one and one-half mills reference is made to the dissenting opinion of the CHIEF JUSTICE and to the concurring opinion of Justice MITCHELL in State ex rel. v. Johnson, supra, for a discussion of this point, and we adopt the views there expressed on that question. The majority of the court, when that case was under discussion, adopted the view that the act was repugnant to the constitutional provision which prohibits the legislature from amending, extending, or modifying existing special legislation; that the tax could not be levied and collected without adopting special legislation for the purpose. This view seems to have been based upon the case of Alexander v. City of Duluth, 57 Minn. 47, and the case of Bowe v. City of St. Paul, 70 Minn. 341. While we believe those cases were correctly decided, in our view of this matter they do not control the case before us. In the Alexander case, Laws 1893, c. 210, was under consideration, and the act provided that in certain cities where tunnels were necessary to connect portions of the city divided by navigable waters, the common council (public interest requiring it) might cause to be constructed such tunnels, and assess the property benefited thereby for three-fourths of the cost, the balance to be a general charge against the city. It was also provided that the proceedings to enforce the assessment and to condemn the necessary property should conform to the proceedings in force in the cities undertaking such improvement. There was no attempt to formulate a general law in this respect. It was held that this was adopting the various special provisions of the cities of the class to enforce the act, and was special legislation, because it was a modification and extension of those special laws. However there are some expressions in the opinion, which are relied on by appellant and urged as applicable here, as follows: “Previous special legislation can never be made the basis of classification, and the legislature cannot touch it, except to repeal it.” — 205 — In the Bowe case (70 Minn. 344) this language is quoted as applicable : “It must appear that the act will always, by the force of its own terms, continue to be a general law. * * * A general law cannot be based on special laws, even though its operation is general when passed, if the legislature, by the future repeal of any or all of the special laws, may render the so-called general law special in its operation and effect.” These are abstract propositions, and cannot be taken as an expression of the law applicable to the case under consideration. The constitutional amendments were adopted for the purpose of avoiding prolific legislation in reference to the subjects mentioned. Special legislation had become a burden. By proper classification general laws could be made applicable. Judicial interpretation has developed this idea, and the tendency has been, and is, to arrange and divide the subjects under general laws. The different sections referred to must be considered together; each clause be given due weight with reference to the others. Upon such consideration it seems to us that undue weight has been given to the words, “but shall not amend, extend, or modify any of the same.” If this part be taken independently of the balance, and strictly construed, then it would follow that the legislature could not touch a special law except to repeal it. But if the provisions of section 34 in reference to the passage of general laws to cover the prohibited subjects be given consideration, it follows that such general laws must deal with such special subjects, taking into account the conditions existing at the time the amendments were adopted. Cities and school districts had been organized, and were then existing under special laws. Sp. Laws 1878, c. 157, as amended by Sp. Laws 1885, c. 86, establishes the board of education of Minneapolis and authorizes said board to levy annually a tax for school purposes not to exceed four mills on the dollar, and to make return of its annual levy to the county auditor, and all such taxes shall be collected and the payment thereof enforced with and in the same manner as state and county taxes. G. S. 1894, § 1557, provides that the taxes voted by cities, villages, townships, and school districts, shall be certified — 206 — by the proper authorities to the county auditor on or before October 10 in each year and, under the general provisions of the general statutes, the tax is collected and the money finally paid over to the county treasurer, and section 1576 provides that the county auditor shall keep account with each school district in the county, and after settlement with the county treasurer shall credit the collections to the proper fund. Section 1577 provides that, the county treasurer shall pay over to each school district, on order of the county auditor, all money collected and belonging to the same. So the fact is, that there are existing general provisions of law as to the levy and certifying of the levy to the county auditor, the collection of the tax, and payment of the same to the board of education. Chapter 77 recognizes the existence of the school district only to confer upon it authority to levy the extra one and one-half mills for school purposes. The provision in Sp. Laws 1S78, c. 157, in reference to authority of the board of education to make the levy and certify the levy to the auditor, may be repealed or ignored, and the law remains complete and does not call into effect any express action authorized by the special act. Is this amending, extending, or modifying a special law within the intent of the constitutional amendments? If so, then G-. S. 1894, § 1557, is a special law; so are the other general provisions referred to, for the cities and school districts organized under special charters are referred to and adopted in the application of those provisions. If the' amendments are to be construed as contended for, then school districts and municipalities organized under special laws are beyond the aid of the legislature. If chapter 77 is unconstitutional, then a general enactment applicable to all school districts in the state would for the same reason be invalid. There is authority beyond our own state to the effect that a reference to special charters and laws is not the test of special laws. One reference will be sufficient. In the case of Van Ripen v. Mayor, 58 N. J. L. 262, there was before the court an act which provided that the board of aldermen, public works, water commissioners or other board, body, or department of any municipality having the charge or control of water supply, could enter into — 207 — an agreement with reference thereto, provided that, in cities having a board of finance and taxation, such contract should be referred to and approved by it. This law was attacked as being special legislation. It was held constitutional. The reference to the various boards created by special charter did not make the act a special law. No dissimilarity is created. All boards are endowed with the same power. 0 We therefore hold, overruling State ex rel. v. Johnson, that the act in question is constitutional. Judgment affirmed.