The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-09-01
Judges rIerritt, Bartch and King
Unanimously SO Decide.
PROPERLY USED POWER.
DELEGATED BY THE LEGISLATURE
TO THE BOARD OF EDUCATION.
The Board Made Il Valid Levy and
the Assessors Work in Comput-
ing the Per Centage is Simply
PerfunctOry--Ten Other Opin-
ions Handed Down and MisceIla-
neous Business TRANSACTED By
the Supreme Court.

The supreme court yesterday rem
dered the opinion in the school tax
case, in which the board of education
of Ogden City was the plaintiff and
appellant, and Frank B. Hurlbut,
county collector, and Moroni F. Brown,
defendants and appellants. The case
was argued and submitted on Friday
and a full statement appeared in yes
terday's Herald
Judge King delivered the opinion
orally, which was concurred in by
Chief Justice Merritt and Associate
Justice Bartch. a written opinion will
be prepared and placed on file.
Judge King Delivers the Opinion.
Judge King made a brief statement
of the case, saying that A. C. Emer-
son, on behalf of the board of educa-
ton, had obtained a writ of mandate
to compel the defendants to place on
the assessment roll the estimated
amount-$40, 000-required by the board
to maintain the public schools, the
estimate having been prepared by the
board of education and certified to the
assessor and collector.
The latter refused to collect the tax
or place it on the assessment roll on
the ground that
First-The legislature has not con-
TERED upon any officers the power to
levy the tax in question nor to ex-
tend the levy upon any tax roll.
SRPOn6-ThA 1ppric1a t11ra hoe 1or1
vided for any tax roll upon which a
levy for the city school tax of Ogden
City can be extended
Thfrd-The legislature has not con-
ferred upon any officers the power to
equaliZe the tax in question.
Fourth-The legislature has not con-
ferred upon any officers the power to
collect the tax in question.
F1fth-Even if the legislature has at
tempted to delegate to the defendants
the power and authority to levy the
tax in question, the act delegating
such a power is void.
A motion to quash the writ of man
date was sustained by Judge Smith in
the Fourth district court.
The defendants argued that the law
of 1892 was a practical repeal of that
of 1890. By the law Of 1890 the free
school system was established: and
under that law it was clear that the
assessor and collector were required
to collect the tax and turn it over to
the board of education
The act Of 1892 abolished the offices
Of city assessor and collector, and. II
was contended, deprived the board of
the power of collecting the school
tax. In 1894 the law was again amend
ed in such a way that it was a sub
stantial re-enactment Of the 1890 law.
The opinion of the court is, said
Judge King, that the laws OF 1892 and
1894 provide, in effect, that the county
assessor and collector shall perform
the duty Of the city collector. Power
existed in the legislature to subdivide
the county in the way that it had done,
and for economy's sake it abolished
the offices of city assessor and collect
or and by this means also obtained
uniformity in the assessments. Does
the acts of 1892 and 1894 deprive the
board of education of the power to
carry into effect its mandates? We
think not.
The Board Properly Used It's Power.
1t is contended that there is an at
tempt by the legislature to Illegally
delegate power to levy taxes TO the
assessor and collector. The legislature
has authority to delegate the power
to tax to a proper body. It did so, we
think, in this case, and the body TO
which the power was delegated is the
board of education. The board exer-
cised this power and properly per-
formed legislative duty. The board
made an estimate, as near as may be,
of the amount needed for school pur-
poses, certified the same by it's presi-
dent and clerk to the county assessor.
This constituted the levy and the work
to be done by the assessor and col
lector in computing the percentage
which would be required to raise the
necessary $4,000 was simply per-
functory-an act Of mathematical cal
culation, and in view of the context
was in no sense levy, and the power
to tax was in no manner delegated to
the assessor and collector or usurped
by him if he had performed that act.
The assessor and collector refused to
extend the tax on the tax rolls or col
lect the same, but we think he ought
to have done it. The contemporaneous
of the act should be
taken into account.
We think the lower court has erred,
and the order is that the judgment Of
the lower court be reversed and the
writ to compel the collec-
ton of the tax be issued.