
    Root v. Board of Education.
    
      Competency of legislature as to special taxing districts — Uniformity of levy — Constitutional law — Act of May SI, 1894 ( 91 Ohio Laws, 84%).
    
    1. It is competent to the legislature to provide for the'creation of a special taxing district; but, in such case, the tax must be levied by a uniform rule on all property in the district.
    2. The act of the general assembly to provide higher education in counties containing cities of the first grade of the first class, passed May 21, 1894 (91 Ohio Laws, 842), is unconstitutional and void, by reason of the want of uniformityin the mode provided for levying the requisite tax, contained in the second section of the act.
    (Decided April 23, 1895.)
    Error to the Court of Common Pleas of Hamilton county.
    
      R. A. Harrison, John A. Wolfe and L. H. Pummill, for plaintiff in error.
    
      The provisions of the act, on which objection is based, pertain merely to the administration of the school system of the state, and so come within the range of purely legislative' authority. In the absence of any constitutional prohibition, the whole matter of the establishment of public schools, comes within the range of proper legislative authority. Curryer v. Merrill, 25 Minn., 1.
    Although the state may not have the constitutional power to divert school money from the purposes for which they are set apart, she may change the administration of the fund, and, in her wisdom and discretion direct The mode or manner of the administration of the trust, and how, by whom, and to whom the moneys are to be paid and applied. Mobile School Commissioners v. Putnam, 44 Ala., 506.
    As the legislature can establish school districts, so it can change or abandon them. The inhabitants of school districts have no rights in the existence, or in any of the corporate functions of the district, which can be regarded as vested rights or which can be set up as beyond legislative control. Farnum’s Petition, 51 N. H., 376. Rawson v. Spencer, 113 Mass., 40.
    The debts which abolish districts may be imposed upon the town. Whitney v. Stowe, 111 Mass., 368; Bromley v. Reynolds, 2 Utah, 525.
    The second contention of opposing counsel is, that the law is not uniform in its operation, in this, that, as is said, it is attempted by this law to levy a tax upon property of persons residing outside of the city, for the support of schools within the city. This contention, like the first, is founded upon a false assumption of fact. The truth is, that the tax provided for is limited to the precise equivalent of the benefit received by the school districts in the county or counties in which the high school or high schools of the cities mentioned in the act are located; and the tax is uniform in the sense in which that word is used in the constitution, because it is levied by uniform rule upon all the taxable property in the school district who receive the benefits of the act, to pay for which, and nothing else, the tax is levied.
    The third claim on the other side is, that the law is mandatory, because it imposes upon boards of education and the board of county commissioners administrative duties which are beyond the power of the legislature to confer. All matters pertaining to the government and administration of public schools come within the range of proper legislative authority; and that with the wisdom or policy of a statute passed in the exercise of such legislative authority, courts have rightfully no concern. Cooley on Taxation, 478; Inhabitants of Norwich v. County Commissioners of Hampshire, 13 Pick., 60; People v. Flagg, 46 N. Y., 401; Gordon v. Cornes, 47 N. Y., 608; Salem Turnpike, etc., v. County of Essex, 100 Mass., 282.
    The act in this present case confers no powers upon a municipal corporation. The powers which it confers are conferred upon common school districts, and boards of education, and boards of county commissioners; neither of which are corporations within the meaning of section 1, article XIII of the Constitution. The State v. Powers, 38 OhioSt., 54; Neil v. Board of Trustees, etc., 31 OhioSt., 15. It should be observed, that special legislation upon a subject matter in its nature local, is not prohibited by section 26, article II of the. constitution, which provides that all laws of a general nature shall have a uniform operation throughout the state, notwithstanding the subject matter is the subject of a general law. State ex rel. v. Shearer, 46 Ohio St., 275. In that case Judge Spear most thoroughly reviews the cáse of State v. Powers, 38 Ohio St., 54, in which a different ruling was made; and the decision in the latter ease was overruled by a unanimous decision in the former ease.
    Another ground of objection to the act is that it is vague and indefinite, and, therefore, inoperative and void. It is well settled that the imperfection of a law will not render it void, unless it be so imperfect as to render it utterly impossible to execute it. Cochran's Heirs' Lessee v. Loren, 17 Ohio, 409; Gordon v. State, 46 Ohio St., 607.
    An act will not be declared void for uncertainty, if by resort to recognized aids in the construction of statutes, it is possible to ascertain its meaning. State ex rel. v. Commissioners, 35 Ohio St., 458; State ex rel. v. Commissioners of Holmes County, 17 Ohio St., 608; State ex rel. v. Foster, 38 Ohio St., 599.
    Evidently, the statute in question is possible of execution. It provides that the children of all tona fide residents of that portion of any county containing a city of the first grade of the first class, not within the corporate limits of such city, and not within any school district which maintains a high school with a four years course of study of similar character to the high school of such city, shall be admitted into and receive instruction in such high schools of said city. '
    
      Frederick Hertenstein, for defendant in error.
    It has been shown that if these acts are constitutional the children of non-residents will have been educated, for the years 1894 and 1895, at the expense of the taxpayers of Cincinnati, and we claim that the practical operation of these acts would be equivalent to imposing a tax upon the taxpayers of the school district of Cincinnati, for the years 1894 and 1895, to educate the children of nonresidents, without a corresponding benefit. Wasson et al. v. Commissioners, 49 Ohio St., 635; Dorgan v. City of Boston, 12 Allen, 237; Cooley on Taxation, 141; Wells v. City of Weston, 22 Mo., 384; City of St. Charles v. Nolle, 51 Mo., 122; Callam v. City of Saginaw, 50 Mich., 7; Hammett v. Philadelphia, 65 Pa. St., 146; Bromley v. Reynolds, 2 Utah, 525.
    We claim that the law is not uniform in its operation. As to all taxation apportioned upon property, there must be taxing districts, and within these the rule of absolute uniformity must be applicable. A state tax is to be apportioned through the state, a county tax through the county, a city tax through the city. Cooley Const. Lim., 6th ed., 610.
    It is attempted by this law to levy a tax upon the property of persons residing outside of the city, for the support of schools within the city. The absence of uniformity in this law is fatal to the case at bar. Exchange Bank v. Hines, 3 Ohio St., 1; Fletcher v. Oliver, 25 Ark., 289; Railroad Company v. Boone Co., 44 Ill., 240; Fisher v. Commissioners, 36 Ohio St., 476; Lydecker v. Englewood, 41 N. J. L., 154.
    We further claim that the law is mandatory, because it imposes upon the Board of Education and board ' of county commissioners administrative duties which are beyond the 'power of the legislature to confer. Weston v. Goesling, 30 W. L. B., 291; Commissioners v. State ex rel., 50 Ohio St., 653; 
      Landis v. Commissioners, 32 W. L. B., 311; State v. Bartlow, 91 N. C., 550.
    It appears to us that the Board of Education, nor the county commissioners, nor the courts, can pass upon the question of a course of study similar to that of the Cincinnati high scliools, and for that reason the statute is inoperative.
    "While section 2 of the act under consideration provides for the assessing and levying’ of a tax, it makes no provision as to the manner in which it shall be paid to the Board of Education. It seems to us that if the taxpayers of the various districts pay the tax to the county treasurer, there is no provision made for the payment of those taxes by the county treasurer to the Board of Education, and "for that reason the law cannot be enforced. 3 Lea (Tenn.), 466.
   Minshall, C. J.

On May 26, 1894, the plaintiff, Georg-e A. Root, brought suit in the court of com: mon pleas of Hamilton county, to restrain the defendant, the Board of Education of the school district of Cincinnati, from excluding his son from Woodward high school, the school being-under the supervision and control of the defendant. The plaintiff did not reside in the Cincinnati district, but in a special school district of Columbia township, Hamilton county. Under a resolution that had previously been adopted, the defendant exacted the payment of $17.50 as tuition in advance for the quarter ending July 1, 1894. This the plaintiff refused to pay, claiming the right to have his son admitted without such payment, under the provisions of the act of the legislature passed May 21,1894. There was no objection to the admission of the plaintiff’s son other than the nonpayment of the tuition.

The cause was heard on a demurrer to the petition. The court held the law to be invalid, sustained the demurrer, and dismissed the petition. The only question involved in the case is the validity of the statute. The material sections are as follows:

£< Section 1. That hereafter all bona fide residents of that portion of any county containing a city of the first grade of the first class not within the corporate limits of such city, and not within any school district which maintains a high school with a four years’ course of study of similar character to the high schools of súch city, shall be admitted into and receive instruction in any such high school of such city or school district on the same terms and conditions as to tuition fees and otherwise, as are now or. may hereafter be prescribed for pupils of such schools residing within such city, or school district.
£ £ Sec. 2. The board of education or other proper board of such city or school district shall, after this act shall have been in force one year, and annually thereafter, make an estimate of the additional funds required for the maintenance of such high school under the provisions of this act, and certify such estimate to the commissioners of the respective county, who, in addition to their other powers of taxation, are hereby authorized and directed to assess and levy upon all the taxable property of such portion of said county not within the corporate limits of such city, and not within the limits of any such school district maintaining such a high school a sufficient tax annually to provide such additional funds; provided, that nothing in this act shall be so construed as to render nugatory the stipulations under which any bequest, devise, donation or endowment has heretofore been made or given for the support and maintenance of any such high school. * * * *
“Sec. 3. This act shall take effect and be in force from and after its passage.”

A number of objections are made to the validity of the law. The principal one is to the mode of levying the tax authorized by the second section. The claim is that the provision for levying it is not uniform as required by section 2 article XII of the constitution. It is a tax on property and must therefore, conform to this provision. The section referred to requires the board of education of the city, after the act has been in force for one year, and annually thereafter, to make an estimate of the additional funds that will be required, for the support of the high school under the provisions of the act, and certify the amount to the commissioners of the proper county, who are then directed to assess and levy a sufficient tax to provide such additional funds upon all the taxable property, not of the entire county, but upon such portions of it, not within the corporate limits of such city, and not within the corporate limits of any school dis - trict that maintains a high 'school with a course of study similar in character to the high school of the city.

Now, unless a tax district can be said to be created by this statute, within which all the property subject to taxation is to be assessed for the purpose of raising the additional funds, it is manifestly invalid, for want of uniformity. Field v. Commissioners, 36 Ohio St., 476. It is claimed by the plaintiff that the tax district is not the county, but the portion that remains after excluding the territory of the city and such school districts as maintain a high school similar in character to that of the city; and that it is competent to the legislature, as held in Bowles v. State, 37 Ohio St., 35, to create a special taxing district without regard to the municipal or political subdivisions of the state. In that case special tax districts were created by the law. Each embraced all the taxable property within one mile on each side of the road improvement, with certain exemptions at the crossings where lands had been assessed for similar improvements. The court noted the si milarity between the want of uniformity between the statute then under consideration and the statute considered and held invalid in the Field’s case; which provided for the levying of a tax in certain counties for the construction of turnpikes, making, however, an exception of such lands as had been assessed for a similar improvement. But as the record in the case did not disclose that there were any such crossings on the Biddeng’er road (the road in question), as would require an exemption of any lands to be made under the law, and the statute might therefore have a constitutional operation in the particular instance, the court held a bond that had been issued for the making of the improvement, to be a subject of forgery. It was not held that exemption could be made in the district in which the tax is to be levied. In the statute now under consideration there is no attempt by definite lines to make a tax-district within which the tax is to be uniformly levied. It may extend to and include the whole county outside of the corporate limits of the city, or it may include but part. This will depend upon whether there are, or are not, school districts within the county having a hig-h school similar in character to that of the particular city; in other, words, whether there ar*e lands within the county outside the city entitled under the law to exemption from the tax. The county is the tax district; and the amount, estimated by the board of education of the city, as necessary to carry out the provisions of the law, is to be levied by the county commissioners upon all lands in the county, except the city, because it maintains the particular high school, and school districts having a. high school similar to the city, because taxed for a similar purpose. There is, then, no difference in principle between this statute and the one held invalid in Field v. Commissioners. There, lands in the county were to- be exempt that had been assessed for. similar road improvements; here, property in the county is to be exempt that has been taxed for the maintenance of a high school similar to that of the city. It violates the principal of uniformity in the taxation of property required by the provision of the constitution above referred to.

There is no question but that it would be competent to the legislature to create, or provide for the creation of a special district in any county for the maintenance of a high school. It might embrace the whole county, or a part of it, provided that all property in it-is taxed alike for the maintenance of the school. Such is not this case. The city, through its board determines' the amount of the levy to be made, pays no part of it. Those who have the tax to pay have no voice whatever in determining the amount of it. It signifies nothing to say that the tax »is levied by the commissioners. When the amount has been ascertained by tbe board and certified to the commissioners, the law is mandatory as to them — they must make the levy. They are mere agents in carrying out the determinations of the board of education.

A special district for taxation should, during the operation of the law creating it, be permanent and definite. Here both these characters are wanting. Until the commissioners have made a levy under the law, no one can tell with certainty what property in the county will be assessed and what not; and their determination may be changed by the judgment of some court on the question, whether some district does, or does not, maintain a high school similar in character to that of the particular city. Again, there is nothing- to prevent any district from raising the standard of its high school to that of the particular city, or even above it, in which case the district would be diminished, or, possibly left without any property in it subject to taxation. These considerations show that any attempt to liken the provisions of this statute to the creation of a special taxing district is illusory, and wholly fails of its object.

This is not a case in which the invalid portion of the law may be rejected without affecting the entire statute. The provisions of the first and second sections are dependent. We cannot assume that the legislature would have authorized the children of nonresidents to attend the high school of the particular city, as is done by the first section, without the provision'as to taxation, contained in the second. The invalidity of this section emasculates the law and renders the entire act invalid. The conclusion here reached makes it unnecessary to consider the other objections to the statute.

Judgment affirmed.  