House v. School Dist. No. 4

I dissent.

I think the scheme provided for by Chapter 275, Laws 1947, is subject to the condemnation made to a similar Act by the Supreme Court of Illinois in Russell v. High School Bd. of Ed., 212 Ill. 327,72 N.E. 441, 442, where the court said:

"The establishment of the high school by the school district under the control of a different board of education was a mere division of existing powers of the school district between two boards of education. What the new board of education can do the district was already authorized to do through the existing board of education. If the Legislature, by authorizing a school district to establish a high school, can also authorize it to incur indebtedness beyond the constitutional limit, they could get rid of all the restrictions of the Constitution by authorizing the management of each grade or department of the public school by a different board of education, with different buildings. Such a construction of our Constitution has never been adopted.

"Even if it could be said that there are two corporations covering the same territory, the creation of the new one would be nothing but a division or redistribution of existing powers under the school law, and in Wilson v. Board of Trustees, 133 Ill. 443,27 N.E. 203, it was said that the organization of the sanitary district was essentially and palpably different from the creation of new corporations vested with some of the functions of local government of pre-existing municipal corporations. It was within the power of the Legislature to provide for the establishment of a high school under the control of a board of education elected for that purpose; but they could not, by multiplying the boards of education in the same territory, authorize the district to incur indebtedness beyond the constitutional limit."

That same rule was followed in People v. Read, 233 Ill. 351,84 N.E. 214.

It is true that in the later case of Fiedler v. Eckfeldt,335 Ill. 11, 166 N.E. 504, the court sustained a bond issue under facts somewhat similar to those here. I think though there were facts in the Fiedler case which made it different from the case before us. In the Fiedler case there was created a bona fide school district to operate a high school. Here if a school district was created it was for the limited purpose of constructing, improving and repairing buildings and not for operating a school.

In considering the validity and effect of Chapter 275, Laws 1947, it is important to bear in mind the state of the law at the time it was enacted and thereby ascertain its purpose. Chapter 275 is practically a carbon copy of section 1301.1 et seq., of the Revised Codes of 1935, being Chapter 47, Extraordinary Session laws of 1933.

We have held that Chapter 47, Extraordinary Session 1933, was valid as an emergency measure designed to furnish employment. But whether the scheme could be used to circumvent section 6, Article XIII of the Constitution, was not passed upon because the facts did not show that that question was involved in the case. Pierson v. Hendrickson, 98 Mont. 244,38 P.2d 991.

The only addition made by Chapter 275 to Chapter 47, Extraordinary Session 1933, was the statement by the legislature that "each high school district created under this chapter shall be a corporation separate from the common school districts included therein" and that the authority to issue bonds extends to "the full amount permitted by Section 6 of Article XIII of the State Constitution irrespective of the debt of the common school districts."

I think Chapter 275 is so palpably an attempt to fritter away section 6 of Article XIII of the Constitution that it cannot stand. To rely upon section 1301.1 et seq. is equally objectionable. The corporation brought into being under section 1301.1 or Chapter 275, Laws 1947, does not have authority to operate high schools. Its sole function is to borrow money for the purpose of "construction, repair, improvement and equipment purposes only."

It is true that in the Pierson case we held that compliance with Chapter 47 brought into being a corporation. I think such a corporation may not be invested with borrowing capacity to the limit authorized by section 6, Article XIII, in addition to and separate and apart from the indebtedness of the school district which operates the high school in question. If that can be done here then the legislature could authorize a redistribution and division of powers of an existing school district without limit by the simple device of authorizing the creation of separate corporations, each entrusted with a portion of the authority and each warranted in incurring a debt to the limit permitted by the Constitution without reference to the debt of the other. I think that cannot be done

Section 6 of Article XIII, it should be noted, is not a limitation upon the people to expend money. They may spend as much as they care to in maintaining public schools, but they may not, so long as section 6, Article XIII remains as it is, pass on to posterity an obligation in excess of the limit therein provided.

I do not attach importance to the circumstance that the boundaries of the two districts involved are not the same.

I think the judgment should be reversed.