McCabe v. Carpenter

Temple, C. This action was brought to recover from the defendant, as tax collector, the amount of certain taxes paid under protest.

Certain school districts in Contra Costa county combined to establish a high school under an act of the legislature, entitled “An act to provide for the establishment of high schools in the state of California,” approved March 20, 1891. (Stats. 1891, p. 182.) The plaintiff questions the validity of a tax levied under this law.

It is contended that the law is unconstitutional, in that it authorizes the county superintendent of schools to furnish to the board of supervisors an estimate for the tax, and makes it the duty of the board to proceed to fix a rate which will realize the amount, thus leaving the amount of the tax wholly to the discretion of an executive officer, and leaving no discretion in the board. The law provides, “ an annual tax shall be levied by the authorities, whose duty it is to levy taxes in counties, cities, incorporated towns, the amount of said tax being estimated by the county superintendent of" schools, . . . . and by him certified to the proper authorities, on on before the second Monday of September of each year. And it shall be the duty of such authorities to levy such rate as will produce the amount estimated to be necessary for such purpose.”

This estimate is furnished after the assessments have been equalized, bio opportunity to be heard is afforded the taxpayer, and the discretion of the officer is controlled only by the phrase “ amount estimated to be necessary for such purpose.”

Appellant contends that this provision violates section 1, article III, of the state constitution, which divides the-powers of the government into three departments, and declares that “no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions pertaining to either of the others.”

It is not denied that the county superintendent of [471]schools is an. executive officer. It seems to me, however, that if it be granted that the section quoted vests in the county superintendent of schools legislative power, the act is void, without reference to the character of the person in whom the power is vested.

Preliminarily to this question, another presents itself. Could the legislature have levied the tax in question, or must it vest in the local authorities that power under section 12, article XI, of the constitution? School districts have been called public corporations and quasi municipal corporations. (Hughes v. Ewing, 93 Cal. 414.) Public and municipal corporations are both mentioned in the section quoted from the constitution. But I think school districts have generally been considered a part", of the county organization, and so they are regarded in the statute under consideration. In Hughes v. Ewing, 93 Cal. 414, it seems to have been held that a school district comes within the provision of section 12, article XI, and that the legislature cannot impose a tax upon the property or the inhabitants, but must vest the power in the local authorities. Whether a school district is itself a public corporation, or, with reference to the section under consideration, is to be deemed a part of the county organization, is immaterial to this argument. In either view the constitutional provision limits the power of the legislature in the matter of imposing taxes upon the inhabitants or the property within it. If the legislature cannot impose a tax upon the property or inhabitants of a school district, it would seem to follow, that it cannot prescribe a procedure through which such tax would inevitably be levied without leaving some discretion in regard to it to the local authorities. The legislature imposes the tax whin it requires an officer to make certain computations, the result of which must fix the amount to be levied. Such a process enjoined upon local authorities does not vest in such authorities the power to tax as required by section 12, article XI. Therefore the argument of the respond