Shepherd v. San Jacinto Junior College District , 6 Tex. Sup. Ct. J. 175 ( 1962 )

GRIFFIN, Justice

(concurring).

Generally I am in agreement with the majority opinion. However, I have a little different approach to this problem and I will set forth the reasons why I think the right to tax for the benefit of junior colleges should be sustained.

It seems to me that the first question which requires decision is whether or not the Legislature has the power, under our Constitution, to legally create a junior college district. In my opinion, the Legislature has such power.

There is no mention eo nominee of junior colleges in the Constitution. What is more important is that there is no specific prohibition in the Constitution which prevents the creation of various junior college districts.

Art. Ill, § 48, prohibits the Legislature from levying taxes and imposing burdens upon the people, except to raise revenue sufficient for the economical administration of the government, in which may be included the following purposes: The support of public schools, in which shall be included colleges and universities established by the state.

“The history of educational legislation in this state shows that the provisions of article 7, the educational article of the Constitution, have never been regarded as limitations by implication on the general power of the Legislature to pass laws upon the subject of education. This article discloses a well-considered purpose on the part of those who framed it to bring about the establishment and maintenance of a comprehensive system of public education, consisting of a general public free school system and a system of higher education. Three institutions of higher learning were expressly provided for. Constitution, article 7, §§ 10 to 15. These express requirements of the Constitution have been met by the creation and maintenance of the University of Texas, the Agricultural and Mechanical College, and the Prairie View Normal. The Legislature, however, has gone far beyond the creation of the three institutions of higher learning specifically required by the organic law, and has created ten additional institutions of similar character without direct constitutional grant, beginning with the Sam Houston Normal at Huntsville in 1879. Marrs’ Texas School Laws (Ed. 1929). In founding these ten institutions, beginning more than fifty years ago, the Legislature has necessarily held that the specific grants of power contained in the Constitution to erect and maintain the University of Texas, the A. & M. College, and Prairie View Normal were not limitations on its power to create other schools of similar purpose, and to maintain them by appropriations from the general revenue. This interpretation has never been questioned, and is consistent with authorities from other jurisdictions.” (Citing authorities). Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31, 1. c. 1st col. p. 33.

“[3] That the enumeration in the Constitution of what the Legislature may or shall do in providing a system of education is not to be regarded as a limitation on the general power of the Legislature to pass laws on the subject is shown by the decision of the Court of Appeals in Ex parte Cooper, 3 Tex.App. page 489, 30 Am.Rep. 152, as well as by the history of legislation touching the subject of education.” idem 1. c. 2d col. p. 33.

“[4] This case is clearly authority for the proposition that, in ascertaining . the power which the Legislature may constitutionally exercise with reference to the school system, we are not to limit or restrict that power, including the power to assign revenue derived from sources other than those specifically named, to the school fund, unless we find in the Constitution itself a specific limitation, or one which arises by necessary implication from the language used.”

The Court then quotes all of Art. VII, § 1:

“A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.”

The Court then said:

“The purpose of this section as written was not only to recognize the inherent power in the Legislature to establish an educational system for the state, but also to make it the mandatory duty of that department to do so.” Citing authorities, 1. c. bottom 2nd col. p. 35.

All emphasis herein has been added by me, except where otherwise indicated.

I believe the above authorities dearly prove that the Legislature has the Constitutional power to create junior colleges and junior college districts.

The next question is: Does the Legislature have Constitutional authority to provide in the Act creating a junior college district that by a majority vote of the qualified voters in said district a maintenance tax may be levied and collected for the support of a junior college so created? The answer to this is also “yes.”

Appellants say that no such power exists and cite certain provisions of the Constitution which they say impliedly prohibit such action. Appellants have pointed to no provision of the Constitution specifically prohibiting such action on the part of the Legislature, but contend there is an implied prohibition against the Legislature giving the junior college district the right, upon a proper majority vote, to levy and collect a maintenance tax within the limits set by the Legislature in Art. 2815h, § 7 (The general Law providing for the creation of junior college districts).

In my opinion the Appellants approach the problem from the wrong point of view. Appellants contend that those provisions of the Constitution which prohibit the state, cities, and towns from making an assessment, levy and collection of taxes in excess, also prohibits a junior college district from exercising any taxing power in excess of such provisions. I take it that the creation and operation of a junior college will be conceded by all to be a public and governmental function placed on the Legislature by our Constitution.

To construe the Constitution and Art. 2815h as not only permitting, but requiring the establishment of junior colleges, but to say these districts have no powers of taxation so as to operate, is to give the Constitution a strained and unreasonable construction.

“In the construction of Constitutions, as well as of statutes, it has been often held that the powers necessary to the exercise of a power clearly granted will be implied.” This rule was referred to in Texas Central Ry. Co. v. Bowman, 97 Tex. 417, 79 S.W. 295, 2d col. p. 297.

“Where a general power is conferred, every particular power necessary for the exercise of same is also conferred, whether expressly granted or not. This is the rule laid down in Cooley’s Constitutional Limitations (8th Ed.) vol. 1, page 138.” First National Bank of Port Arthur v. City of Port Arthur (Tex.Civ.App.1931), 35 S.W.2d 258 (7, 8), no writ history; Baugham v. Willacy County Water Control & Imp. Dist, No. 1, et al. (Tex.Civ.App.1938), 112 S.W.2d 318, 321, (4, 5) writ refused.

“In spite of this (the duty of the Judiciary to determine whether a law is unconstitutional), a statute is presumed to be constitutional, and every reasonable doubt as to the validity of an Act must be resolved in its favor.” (Emphasis added). Friedman v. American Surety Co. of New York (1941) 137 Tex. 149, 151 S.W.2d 570, bot. 2nd col. 580; Tex. Nat’l. Guard Armory Board v. McCraw (1939) 132 Tex. 613, 126 S.W.2d 627(9-12); Dendy v. Wilson (1944) 142 Tex. 460, 179 S.W.2d 269 (12-14), 151 A.L.R. 1217; Duncan v. Gabler (1949) 147 Tex. 229, 215 S.W. 2d 155(1-5); Smith v. Decker (1958) 158 Tex. 416, 312 S.W.2d 632(3).

Since we have been cited to no provision of the Constitution specifically prohibiting the Legislature from authorizing a junior college district to levy and collect a maintenance tax within the limits prescribed, and since I have been unable to find such provision, I would adhere to the above well established rules of construction and uphold the power of the Legislature to provide for the maintenance tax.

In Friedman v. American Surety Co. of N. Y. (1941) 137 Tex. 149, 151 S.W.2d 570, the contribution required from the employer under the Unemployment Compensation Act was sustained as against the attack that the Legislature had no power to levy this tax (the case holds the contributions were taxes). Among the attacks made was the one that the Act necessarily violated the implied provisions of the Constitution which forbids the Legislature to delegate its powers to any other body, board or bureau. In sustaining the Act, the Court said:

“As already shown, this is a taxing statute. The power to tax is inherent in sovereignty. Unless the tax here levied is prohibited by some other provision of our Constitution, or some provision of the Federal Constitution, it could not violate Section 19 of Article I of our State Constitution.

“[11,12] Section 48 of Article III of our Constitution provides that the Legislature shall not have the right to levy taxes or impose burdens upon the people, except to raise revenue sufficient for the economical administration of the Government. It is then provided that certain named purposes may be included in the power to levy taxes and impose burdens. Of course the naming of such particular pmposes would not exclude other proper governmental purposes. The effect of this constitutional provision is to prohibit the Legislature from levying taxes or imposing burdens for purposes other than to administer the Government. If a tax cannot be classed as a tax to administer the Government it is unconstitutional, unless it is authorised by some other constitutional provision. The administering of Government, however, covers and embraces a very large field of action. To our minds, this Act is not antagonistic to this constitutional provision. It certainly serves a public purpose. If it does so, and does not violate some other constitutional provision, it does not violate this provision.”

If that tax could be sustained when unemployment compensation or a tax to support it is not even mentioned in the Constitution, how can it be said that a tax to carry out the specific mandate of Art. Ill, § 48 of the Constitution that the Legislature may levy taxes for “the support of public schools, in which shall be included colleges and universities established by the State” is invalid and beyond the power of the Legislature to enact. I cannot agree that such holding should be made by this Court. The power to tax being inherent in sovereignty; the Legislature having the power to levy taxes or impose burdens for the purpose of administering the government; the establishment of an educational system being expressly required of the Legislature and this power being excepted from the prohibition of the Legislature to tax (Art. 3, § 48 of the Constitution) ; there being no provision in the Constitution limiting the amount of taxes that can be levied by a junior college district, then it must necessarily follow that Sec. 7 of Art. 2815h, authorizing a junior college district to levy a maintenance tax within certain limits, must be upheld.

It will be noticed that the Unemployment Compensation Act does not levy the tax on every citizen of the state. Therefore, it is not a state tax, and the Friedman case so holds, 151 S.W.2d 578(15). Our junior college tax is also a levy only on a part of the citizens and property of the state, therefore it is not a state tax.

The mistake of appellants is that they consider the various constitutional provisions limiting the state ad valorem tax, the tax that may be levied by a public free school district, by cities, counties and municipalities, as constituting the source of the constitutional power of taxation. The true reasoning is that these provisions are the limiting of the inherent sovereign power to tax, not creation of the taxing power as appellant contends. The Legislature has had the power to tax solely within their discretion, except as limited by the Constitution. To limit this inherent power, the people imposed the various limitations found in the Constitution. This action put a ceiling on the exercise by the Legislature of their inherent taxing power.

Again, the constitutional provisions relied upon by appellant have to do with state taxes, not with junior college district taxes. Junior college district taxes are not state taxes. The tax levied applies only to the district, not statewide.

In the case at bar, the Legislature in 1927 asked the Attorney General whether or not the Legislature had the constitutional authority to enact a law providing for one or more school districts or one or more counties to organize a junior college district and vote a district tax for the support of such junior college. In a departmental opinion the then Attorney General under date of February 14, 1927, answered the question in the affirmative. In 1929 the Legislature enacted a general law of statewide application providing the conditions under which junior colleges could be formed, and providing that a maintenance tax for the support of such colleges might be levied upon the taxable property in the district by a majority vote of the duly qualified electors. Under this legislative enactment some thirty-three junior colleges have been established, and taxes voted to support and maintain them. They serve approximately 38,000 students. In the basic act certain duties are imposed upon the State Department of Education with reference to making a survey of the proposed junior college district and its needs for a junior college. This board is an agency of the executive department of our state government. Certain other duties are also placed upon the Board of Education in regard to the establishment and operation of junior colleges created under the act

1'he junior colleges created under this act have issued bonds for the construction and equipment of the physical plants in which these colleges operate. It has been the duty of the various Attorneys General of the State of Texas to approve these bond issues. These bonds have been issued and marketed and I am sure many of them are owned by the permanent school fund of this state as well as by the members of the public. We know that prior to the successful marketing of these bonds, it has been necessary that their legality, validity and binding effect be approved by various capable and learned attorneys specializing in municipal bond issues. Each and every bond issue was required to be supported by a proper tax levy sufficient to pay the principal and interest on such issue. All such issues until the filing of the present suit have been approved by both the Attorneys General and private practitioners.

Until 1941 these junior college districts were supported wholly by maintenance taxes voted by a majority of the resident voters in each junior college district. In 1941, the Legislature made the first general appropriation bill for the support of the junior colleges created under the basic act (Art. 2815h, et seq. R.C.S.). Each succeeding Legislature has made a like appropriation from the State General Fund to “supplement local funds in the proper support, maintenance, operation and improvement of the public junior colleges of Texas.” These appropriations have been made on the basis of so much money per capita on the enrolled students in each junior college.

For the past thirty-three years our Legislature has recognized the constitutional mandate by continuously enacting measures pertaining to the creation of junior college districts, their support and maintenance. The State Board of Education and the Central Education Agency who have control and supervision over all junior college districts, and the Attorney General of this State consistently have approved and executed these laws. For thirty-three years the legislative and executive branches of our state government have construed our Constitution as containing no restraint upon the power of the Legislature to do the things complained of in this case,

“As has been shown, the Legislature since 1915 has consistently construed the Constitution as permitting the enactment of rural aid measures, and the executive department has approved and executed these laws. The universal rule of construction is that legislative and executive interpretations of the organic law, acquiesced in and long continued, as in the case before us, are of great weight in determining the validity of any act, and in case of ambiguity or doubt will be followed by the courts. 9 Texas Jurisprudence, p. 439, § 27; 6 Ruling Case Law, p. 62, §§ 59, 60, 61, 62; Cox v. Robison, 105 Tex. 426, 439, 150 S.W. 1149; Gulf, C. & S. F. Ry. Co. v. [City of] Dallas (Tex.Com.App.) 16 S.W.(2d) 292, 294; Greene v. Robison, 117 Tex. 516, 535, 8 S.W.2d 655; Theisen v. Robison, 117 Tex. 489, 8 S.W.2d 646; Walker v. Meyers, 114 Tex. 225, 266 S.W. 499; Kimbrough v. Barnett, 93 Tex. 301, 55 S.W. 120.” Mumme v. Marrs (1931), 120 Tex. 383, 40 S.W. 2d 31, 35.

I feel that the following quotation from the Supreme Court of Pennsylvania, Wilson v. School Dist. of Philadelphia, 328 Pa. 225, 195 A. 90, 113 A.L.R. 1401, 1412, 2d col., is apropos to our case:

“* * * [Wjhere a statute has been in force for many years without any question as to its constitutionality being raised and engagements have been entered into on the strength of its validity, the court will not undertake the drastic measure of wiping it off the statute books unless it is convinced beyond all peradventure of doubt that it violates a provision of the fundamental law.”

Appellants contend that the fact that the Legislature has submitted many constitutional amendments authorizing creation of special districts is proof that the Legislature thought they did not have the power to create special districts and authorize them to levy taxes. A similar argument was made to this court against the constitutionality of the Unemployment Compensation Act in the Friedman case, supra. This court refused to give weight to this argument and said:

“We [will] say, however, that the history of the submission of constitutional amendments in this State will prove that not all of them have been submitted in order to create a legislative power. Some few have undoubtedly been submitted to ascertain the will of the people, and to enable them to express such will regarding a governmental policy.” 151 S.W.2d 580 (17).

In applying the above discussed rules of construction and keeping in mind that there must be some constitutional provisions pointed out, which the taxing statute in question violates either expressly or by necessary implication (Vincent v. State (1921) Comm.App., 235 S.W. 1084, 1087-1088; Allen v. Channelview Ind. School District (Tex.Civ.App.1961), 347 S.W.2d 27, writ refused), and since no such provision has been pointed out, I agree with the majority opinion affirming the trial court’s judgment upholding the tax.