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Hughes v. Ewing

Supreme Court of California
Feb 18, 1892
93 Cal. 414 (Cal. 1892)


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.

Summary of this case from McCabe v. Carpenter


Department One

Appeal from a judgment of the Superior Court of Fresno County.


Property within a school district cannot be taxed when a portion of it is excluded before a vote is taken as to the indebtedness, as it would be taxation without representation. (Cooley on Taxation, 58, 59, 61; Richards v. Daggett , 4 Mass. * 534.) As a large portion of the property had been properly excluded by the board of supervisors of the county after the vote had been taken upon the indebtedness, but before any return thereof had been made to the board and action taken, the land in the exterior limits of the district cannot be taxed. (Richards v. Daggett , 4 Mass. * 534.) Where the territory of a municipal corporation is divided, and a new corporation erected from a part thereof, the old corporation will be entitled, in the absence of statutory provisions to the contrary, to the corporate property, and will be solely answerable for all the liabilities. (Richards v. Daggett , 4 Mass. 539; Richmond Co. v. Lawrence , 12 Ill. 1; Cobb v. Kingman , 15 Mass. 197; Blackstone v. Taft, 4 Gray, 250; Hartford Bridge v. East Hartford , 16 Conn. 149; Town of Depere v. Town of Bellevue , 31 Wis. 120; 11 Am. Rep. 602; North Yarmouth v. Skillings , 45 Me. 133; 71 Am. Rep. 530; Windham v. Portland , 4 Mass. 384; Hampshire v. Franklin , 16 Mass. 86.) Where the boundaries of a township have been extended after it has voted aid to a work of internal improvement, the territory brought in cannot be subjected to the tax so voted. (Cooley on Taxation, 2d ed., 59, note; Alvis v. Whitney , 43 Ind. 83.) It is certainly difficult to understand how the taxation of a district can be defended whose people have no voice in voting it, in selecting the purposes, or in expending it. (Cooley on Taxation, 2d ed., 161.)

Church & Cory, for Appellants.

W. D. Tupper, and H. H. Welsh, for Respondents.

The original tax voted upon the district was regular in every way, and attached to the land at the time it was voted in said district. (Reeve v. Kennedy , 43 Cal. 653.) A school district is a quasi municipal corporation, and the rules relating to the division of municipal corporations apply to school districts. If one municipality is set off from another, the old one (unless it is otherwise provided by statute) will retain the public property and remain liable for the corporate debts. (Cooley on Taxation, 162, 163, 239.) It will also retain the right to proceed in the collection of the tax previously voted, and they will belong to it, though collected in part from the territory now set off. (Cooley on Taxation, 239, and authorities cited in note; Moss v. Shear , 25 Cal. 38; 85 Am. Dec. 94; Blackwell on Tax Titles, 345.)

JUDGES: Harrison, J. Paterson, J., and Garoutte, J., concurred.



The board of supervisors of Fresno County, on September 6, 1890, changed the boundaries of Fresno City school district by excluding therefrom certain lands described in the complaint herein, and transferring the same to other districts. Prior to that date, the electors of the district had voted to raise the sum of six thousand dollars for the purpose of building a school-house, but the trustees of the district did not certify the fact to the supervisors until the 23d of September, 1890. Thereafter, on the first Monday of October, the supervisors, at the time of levying the county taxes, levied a tax sufficient to raise the sum thus voted upon all the property that was within the district at the time the vote was had, including the lands described in the complaint. The present action is brought by the plaintiffs as owners of said lands to declare the tax null and void as to those lands, and to restrain the defendant Ewing, the tax collector of the county, from collecting the same, and from selling any of the lands described in the complaint for said tax.

A school district, when organized as provided by the Political Code, is a public corporation of a quasi municipal character, possessing such authority as has been conferred by the legislature, to be exercised in the mode and within the limits prescribed by the statute. The power to change the boundaries of the district, as well as to define them in the first instance, is of legislative origin, and, whether exercised immediately by the legislature or mediately by a board of supervisors -- the local legislature -- is, whenever exercised, a legislative act. It is well settled that the legislature has the power to make such changes, and that in the exercise of this power it may make such provision respecting the property and obligations of the corporation as it may deem equitable or proper, and that its action in this respect is conclusive. It is also well settled that when the boundaries of such corporation are changed, either by forming a new corporation out of the territory of the original one or by transferring a portion of the territory to another corporation, in the absence of any provision on the subject, the old corporation will be entitled to all the property and be solely liable for all the obligations, and that the territory taken therefrom will not be entitled to any of the corporate property or liable for any of the obligations of the old corporation. (Town of Depere v. Town of Bellevue , 31 Wis. 120; 11 Am. Rep. 602; Laramie Co. v. Albany Co ., 92 U.S. 307; Dillon on Municipal Corporations, sec. 188.)

Under these principles and authorities, in order to render the territory which was transferred from Fresno City school district to another district liable for any of the obligations incurred by that district, or to a contribution for any of its obligations, it is necessary to show that such liability has been declared by the legislature. While the constitution has taken from the legislature the power to impose taxes upon counties or other public corporations, it has not given to such corporations any power whatever to impose taxes, but has authorized the legislature to vest such power in them by general laws. (Const., art. XI., sec. 12.) The power of a county or other public corporation to impose any tax is [28 P. 1068] only that which is granted by the legislature, and its exercise must be within the limits and in the manner so conferred.

Section 1617 of the Political Code provides that the trustees of a school district may build a school-house "when directed by a vote of their district," and by section 1830 the trustees are authorized to call an election and submit to the electors of a district the question whether a tax shall be raised for that purpose, specifying in the notice of the election the amount of money proposed to be raised and the purpose for which it is intended to be used. (Pol. Code, sec. 1832.) If the electors of the district vote therefor, the trustees are to certify this fact to the board of supervisors, and the supervisors, when levying the county taxes, must levy a tax sufficient to raise the amount voted "upon all the taxable property in the district voting such tax." (Pol. Code, sec. 1837.)

The vote of Fresno City school district was in the nature of an authority to the trustees from that corporation to expend the sum of six thousand dollars in the erection of a school-house. Under the provisions of the constitution, before this authority could be exercised, it was necessary that the money should be provided for by taxation. The legislature has designated the supervisors of the county as the body to levy a tax for school purposes, but has limited their authority to the amount voted by the district, and declared that it is to be levied upon the property "within the district voting the same." The "district" upon whose property the tax is to be levied is the "district" which has been constituted a public corporation, and which is designated by the name given it under the provisions of section 1575 of the Political Code. The word "district," as used in section 1837, is not the equivalent of "territory within the district," but is a synonym for the "corporation," voting the tax, and the tax to be levied by the supervisors is limited to the property within this corporation. The "Fresno City school district," in the present case, was the "district" which voted the tax, and it is upon the property within the "Fresno City school district" that the tax is to be levied. By the change in its boundaries, this public corporation or district did not lose its identity or name, or cease to be the same legal entity that it was before. (Bates v. Gregory , 89 Cal. 387.) For all purposes of corporate power or liability, it remained unchanged, and the property upon which the supervisors should have levied the tax is only such property as, at the time when the tax was levied, was within the boundaries of this corporation.

Irrespective of the construction thus given to the section, it would be difficult, upon principle, to uphold the validity of a tax upon property which is without the district to be benefited by the expenditure of the money so to be raised. The theory upon which the power of taxation is authorized is the benefit to the tax-payer. It would be manifestly unjust to compel a contribution by tax to an object or for the benefit of a class in which the tax-payer is directly excluded from participating. The case of Richards v. Daggett , 4 Mass. 534, is almost identical in its facts with the present case, and although it is unnecessary to adopt all the views of the court in that case, yet its opinion is in accordance with the foregoing views. It is not shown in this case what proportion of the district was covered by the lands which under the change of boundaries were excluded therefrom, but that is immaterial, as the principle is the same, whether such lands were a small portion or the greater portion of the district.

If, before the change in the boundaries, the tax had been levied so as to become a charge upon the property, or an obligation from the tax-payer, it could have been thereafter collected, as was held in Moss v. Shear , 25 Cal. 38; 85 Am. Dec. 94. In that case it would have become ripened into an obligation which would constitute a part of the assets or property of the corporation, and, as we have seen, would, in the absence of any legislative provision on the subject, belong to the old corporation, the same as any other public property in its custody. So long, however, as it was only an inchoate right which had not become an enforceable obligation, the transfer of the property from the limits of the district took away the power to create such obligation. Until the assessment is made, no individual debt is incurred. (Waldron v. Lee, 5 Pick. 332; Jackman v. School District, 5 Gray, 413.)

The judgment is reversed.

Summaries of

Hughes v. Ewing

Supreme Court of California
Feb 18, 1892
93 Cal. 414 (Cal. 1892)

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.

Summary of this case from McCabe v. Carpenter
Case details for

Hughes v. Ewing

Case Details

Full title:M. C. HUGHES et al., Appellants, v. A. D. EWING, Tax Collector, etc., et…

Court:Supreme Court of California

Date published: Feb 18, 1892


93 Cal. 414 (Cal. 1892)
28 P. 1067

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