Gulf, C. & S. F. Ry. Co. v. Blum Independent School Dist. , 1911 Tex. App. LEXIS 796 ( 1911 )

On Second Motion for Rehearing. In the original opinion herein, upon the authority of section 161 of the school law of 1905, which is the act governing this case, we held that the school trustees were authorized to fix the value of property in their districts at a different valuation than that for which the same was assessed for taxes for state and county purposes. Upon rehearing, upon authority of section 57 of said act, we held to the contrary. Now comes the defendant in error and insists that we were in error in our decision last above referred to, for the reason that section 57 applies only to common school districts. The argument is plausible, and but for the second proviso in said section 57 we would agree with such contention. It is true that the act of 1905 undertakes to deal with the entire public free school situation; and there is an evident intention to divide the matters to be considered under separate heads in said act. Said act has five distinct headings, indicated by indented headlines in capital letters, these followed by subheads in italics. Two of these principal headings are "Common School Districts," and "Towns and Villages Incorporated for School Purposes Only." Section 57 is under the former heading, and section 161 is under the latter heading. But, though this was the evident purpose of the Legislature, still, if in any portion of said bill there is anything which is intended to apply to the whole bill, it must be held to do so. This was done, as in apparent from the language used in a number of the sections of said bill. For instance under the heading "Common School Districts," it was enacted that white and colored children should not be taught in the same schools (section 93); the terms "white and colored races and children" was defined (section 96); the scholastic year is fixed to commence September 1st, and end August 31st (section 97); all recitations are required to be conducted in the English language (section 102); no part of the public school funds are to be appropriated or used for the support of any sectarian school (section 130). It cannot be doubted that all these provisions apply to schools of every character, whether communities, common school districts, or independant districts. Sections 91, 101, and 116, under the heading of "Common School Districts," by their express terms, are made to apply to independent, as well as common school, districts; while section 124, under said heading, by its express terms, applies only to cities and towns of 500 or more scholastic population which have become independent districts.

Was it the intention of the Legislature to make the second proviso of section 57 apply to the entire bill — that is to say, to all schools provided for in said bill? It is a primary rule of construction that language must be taken in its ordinary signification. The language used in said second proviso is, "Provided that in all assessments of property under this bill [italics ours] all property shall be assessed at the valuation fixed for said property for state and county purposes." That the subject-matter is to be looked to is one of the rules of construction, and this section starts out by dealing with the subject-matter of common school districts; but the subject-matter of the bill was public free schools of every character. The word "bill," as used in this proviso, is one of plain meaning, and of one meaning only, and that is the whole act.

There is another rule of construction of legislative acts, and that is that every word is presumed to have been intentionally used for the purpose of making clear the legislative intent. What possible purpose could this second proviso serve, if it was not intended to apply to independent districts? The first proviso had already made it clear, beyond the peradventure of a doubt, that in assessments of taxes, made by commissioners' courts for common school districts, "all property assessable for school purposes should be assessed at the rate of value of property as said property is assessed for state and county purposes." Inasmuch as this section thus far was dealing with common school districts, we think this first proviso was intended to apply to common school districts only. The Legislature doubtless thought so too; and, desiring to extend this limitation beyond the subject-matter of this section of the bill, it expressly provided in the second proviso for its extension to all property assessed for school taxes "under this bill."

There is another rule of construction, and that is, the entire act should be construed together; and if, by any reasonable construction, two sections of the bill can be so construed as that both may stand it is not to be held that one section repeals the other. Repeal by implication is not favored, and will not be held by the courts, if any other construction is reasonable. Section 161, under the head of "Towns and Villages Incorporated for School Purposes Only," is not under the subhead of "Taxation," as is section 57 but is under the subhead of "Election of Trustees." Section 160, under said subhead, provides for the election of such trustees; and section 161 provides for the control of the schools by such trustees, and declares that they "shall, in general, be vested with all the powers, rights and duties in regard to the establishing and maintaining of free schools, including the powers of taxation for free school purposes, that are conferred by the laws of this state upon the councils or boards of aldermen of incorporated cities of towns." It will thus be seen that section 161, by its reference to cities and towns, defines, in a measure, the powers of control to be exercised by such trustees. The power of taxation is here mentioned only as an incident to the general power of control by the trustees. Holding that the second proviso of section 57 controls as to values for the purpose of taxation in independent school districts does not by any means destroy section 161. On the contrary, there is left, not only the general control provided for in said section 161, but also the power of taxation, in so far as it concerns the annual levy of the tax, determining the amount thereof, and enforcing its collection; such powers to be determined by like powers conferred upon city councils of incorporated cities and towns. On the other hand, if section 161 be construed to give the trustees of independent districts, through a board of equalization or otherwise, power to assess the property of such districts at a valuation different from "the valuation fixed for said property for state and county purposes," such construction repeals the second proviso of section 57. If so construed, the two cannot stand together.

As above stated, the act of 1905 was an effort upon the part of the Legislature for the first time to bring together in one bill all of the law with reference to public free schools; in doing so they have, to some extent, left the matter in a state of confusion. The language used in section 161 of said act is the same language that was used in the act of April 6, 1881, authorizing towns and villages to incorporate for free school purposes, and remained the law as to such districts up to the time of the adoption of the act of 1905. Gen. Laws 1881, p. 114; arts. 541a to 541f, Rev.Stat. See R.S. 1905, arts. 3994 to 4003. Articles 4000 is the same as said section 161.

The language used in section 161, supra, having been the law, with reference to towns and villages incorporated for school purposes only, since the first statute on that subject was enacted, it will be presumed that the Legislature acquainted itself with the practical construction that had been given to this language by the trustees of such independent districts. If they ascertained the facts to be that no board of trustees had ever assumed that they were empowered under this act to assess property at a valuation different from that fixed for state and county purposes, the Legislature might well have presumed that no such power would be claimed under this section in the future; and therefore did not deem that in enacting such section they were repealing the second proviso in section 57 of said bill. Or it might be that they ascertained that no such power had theretofore been claimed by school trustees, but, seeing that the language of said section 161 might be construed to give them such power, and not desiring such power to be conferred, they inserted the second proviso in section 57. On the other hand, if the facts were that such power had been claimed and exercised under the previous law (which, as we have seen, was in the exact language of section 161), it is to be presumed that they did not intend such power to be exercised in the future; and therefore explicitly declared in the second proviso of section 57 that such power should not thereafter be exercised.

The other sections referred to in the original opinion are sections 149, 160, and 165. Section 149 continued the policy of allowing towns and villages to incorporate for free school purposes, with such power as to the collection of taxes as had been granted to such independent school districts under former laws. This section does not throw any light upon the issue under consideration. Section 160 simply provides for the election of school trustees. The proviso in section 165, "that the property of such districts having their taxes assessed by the county assessor and collector shall not be assessed at a greater value than that assessed for county and state purposes," would seem inferentially to indicate that districts, not having their taxes assessed and collected by the county assessor, might be assessed at a greater value than the same was assessed for county and state purposes. But power to fix valuation of property for the purposes of taxation cannot be conferred by inference, as against an express declaration to the contrary, such as is contained in the second proviso of section 57.

For the reasons above stated, the motion for rehearing herein is overruled.

Motion overruled.

KEY, C.J., not sitting.