Lowden v. Excise Board of Texas County , 185 Okla. 143 ( 1939 )

I agree with the result announced in the opinion of the majority that the portion of the act complained of is unconstitutional, but I think it is invalid as an improper delegation of legislative power, and not because it authorizes an exemption from taxation. I cannot agree that the Legislature, by a properly framed act, could not itself have done that which was attempted by the act in question.

I see nothing in the act which violates the constitutional requirement of uniformity in taxation or which creates an exemption from taxation. It is elementary that the Legislature may create different taxing districts throughout the state for different purposes, and the requirement of uniformity is met provided there is uniformity within the particular district, and provided the purpose to be accomplished by the tax pertains to the district taxed. 61 C. J. 133, sec. 65; 26 Rawle C. L. 247, sec. 220. The creation of such districts does not relate to exemptions from taxation. No one would contend that because a greater tax burden is imposed on the inhabitants of one taxing district than is imposed on the inhabitants of another district, the latter is thereby partially exempt from taxation. Such is the case where territory is attached to a consolidated district. A school district is a taxing district and under section 26, art. 10, of our Constitution, it may incur indebtedness and levy taxes to retire same. Where one school district is annexed to a consolidated school district, it is provided by statute (section 6924, O. S. 1931) that the annexed territory shall remain liable for its own prior indebtedness. Thus, such territory is a separate taxing district within the consolidated school district for such purpose St. Louis-San Francisco Ry. Co. v. Bona parte (1930) 142 Okla. 177,286 P. 343. Clearly, then, in such cases, as long as the tax is uniform in each taxing district within the consolidated school district, there is no exemption from taxation or lack of uniformity.

How is that different from this case? There the Legislature itself has in effect created a taxing district for the purpose of retiring prior bonded indebtedness. Here the Legislature has attempted to do the same thing through a subordinate agent, the county superintendent. It has delegated to the county superintendent authority to apportion the indebtedness between the territory attached to the independent district and the territory comprising such independent district prior to the annexation This is accomplished by retaining the identity of the attached territory as a distinct taxing district within the newly formed independent district and determining what its burden of taxation shall be. In this case the county superintendent has said, in effect, pursuant to authority given by statute, that the territory attached shall remain a separate taxing district, and as such he has refused to impose upon it the burden of taxation imposed upon its neighboring taxing district — the old independent district — for the purpose of retiring the indebtedness of the old independent district. In so doing there is no lack of uniformity as required by the Constitution, nor has there been an exemption from taxation of the property of the taxing district which is composed of the attached territory.

I think, however, the Legislature has improperly delegated its authority to the county superintendent to do this. The act provides that the attached territory shall assume such proportion of the indebtedness as the county superintendent may "approve," and "as may be determined to be a proper proportion thereof under any proposal submitted" by the board of the independent school district. It will be seen that there is no guide or standard fixed by which the county superintendent shall determine what proportion of the indebtedness shall be assumed in connection with the purpose to be accomplished by the tax. That purpose is to retire an indebtedness for school purposes by those receiving the benefit thereof. Thus, the attached territory should be taxed to pay for buildings and property in the independent district from which its inhabitants receive a benefit, but should not be required to pay the debts of the independent district incurred for improvements from which the inhabitants of the attached territory receive no benefit. The Legislature should fix a guide or standard designating this purpose under which the county superintendent could act in apportioning the indebtedness. I do not think the Legislature itself is powerless to do this under a properly framed law.

But it is said in the majority opinion that when territory is attached to an independent district, the newly formed independent school district is the taxing district, and a different rule of taxation therein violates the uniformity requirement or may constitute an exemption from taxation. Where the Legislature has not said that the attached territory shall be a distinct taxing district within the newly formed independent school district, this view would be correct. Such was the situation prior to the time this court promulgated the opinion in Missouri, Kansas Texas R. Co. v. Excise Board of Bryan County (1937) 181 Okla. 229, 73 P.2d 173. See St. Louis-S. F. Ry. Co. v. Comanche County (1929) 136 Okla. 265,277 P. 932, and Protest of St. Louis-S. F. Ry. Co. (1933)164 Okla. 229, 23 P.2d 699, where it was held that territory attached to an independent school district assumes the indebtedness of the independent district upon annexation. But in the Bryan County Case, by a divided court, it was held that the territory comprising the old independent district did not assume the prior indebtedness of the attached territory upon annexation. If the newly formed independent school district is the taxing district, is not the property of the old independent school district exempt from taxation when it does not assume the prior indebtedness of the attached territory, just as it is said in this case that the property of the attached district is exempt by not assuming the indebtedness of the independent district? In the Bryan County Case, the court has done what is said here that the Legislature cannot do. I have never been able to subscribe to the views of the Bryan County Case, for I think that case does violate the requirement of uniformity of taxation in a single taxing district. But here the Legislature has attempted to correct that situation. I think it has the power, if properly exercised, to do so.