Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-10-31
Educational Levy Issue
Is Discussed by Court.
Opinion by Judge Fisk Clearly Shows Attitude Of Judiciary to
H the Entire Controversy.

In order to be fair to all sides in
the levy controversy, the Tribune is
publishing in full the opinion of the
supreme court. 1t is by Justice Fisk.
The opinion follows:
Application on due notice is made
to this court by a resident citizen and
taxpayer for a writ commanding the
respondents, as members of the state
board of equalization, to correct and
readjust it's levy of state taxes SO as
to include therein one and One-eighth
mills for the educational institutions
of the state pursuant to the special
levy for such purposes made by the
legislative assembly in Chapter 14S,
Laws 1913. Such board levied but
one mill to meet all the special levies
made by the legislature leaving but
| a fraction of a mill for the %education'
al institutions as apportioned by such
board. The board attempts to justify
It's action in so doing upon the
grounds:
1st. That the acts attempting to
make such special levies is uncon-
stitutional, and,.t .asg
2nd. That such reduction was nee
essary in order to bring the total lew
for state plrEoEts within the cOlsti-
,ltional limit. If four mills as pr3v1d-
q. by section IA Of the state cOnsti-
tuition, which. leaGs: ~,a:1 w.. W
"The legislative assembly shall
provide for raising revenue sufficient
to defray the expenses of. the state
for each year, not to exceed in any
one year four ca mills on the dol
lar of the assessed valuation of all
taxable property in the state, to be
ascertained by the last assessment
made for state and county purposes,
and also a sufficient sum to pay the
interest on the state debt"
Pass Up ConstitutionaIity.
We do not pass upon the constitu-
tionality of such special levy stat
utes for the reason that such point
is not pressed by respondents coun-
sci, and at the oral argumen. was
practically abandoned by them. Fur
thermore, all the beneficiaries under
these statutes are not before the
court and it would he unfair to til IN
to adjudicate asuch question in their
absence. Moreover, some Of these
special levy statutes have been in
operation for many years and their
validity has never been questioned.
1t is also, at least, doubtful as. to the
right Of respondents, as members of
the state board of equalization, to-
raise such question at all, and espe-
cially in these. proceedings. ~
Not Imperative. !
Following theiwell settled rule that
courts will not inquire into the valid
ity of a statute except when it is i'm
perative so to dos we refrain from OBJ
serving that respondents contention
on this point, issjn any event, appar.
emily inconsistent with- their action
in levying a, fraction of a mill for
such purposes.
The petitioner, on the other hand,
is, we think, clearly in error in his
contention that the constitutional linn
it of four mills as fixed in section 174.
supra, does not apply to levies for ed
ucational purposes. If such conten-
ton be sound, there is no limit to the
rate of taxation except with reference
to raising revenue sufficient to de-
fray the expenses;of the three co-ordi-
nate branches ofo4the etate govern
ment, the executive, legislative and
judicial. In employing the language:
"The legislative assembly shall pro-
vide for raising revenue sufficient to-
defray the expenses Of the state for
each year, not to exceed in any one
xyoor co,r willie on tho 1n01or1 of0
the trainers Of the constitution clear
ly intended to thus limit the raising
of revenue for all purposes whatso-
ever except that mentioned in the
last clause of the section, and this
is the holding of the Colorado court
under a similar constitutional pro-
vision. People VS.. Scott, 8 Col. 422,
~ Pac. COS; Opinions of Judges, %
Pac. (Col.) 464; People VS.. State
Board of Equalization, 20 Col. 220,
81 Pac. 1854. It would, indeed, be
strange if it was intended to limit the
raising of revenue necessary for keep
ing the state government in opera
ton, and yet leave a free hand as to
all other purposes. Is the m%ainten-
ance of the educational institutions
more important that the maintenance
of the state government itself? Clear
ly not.
Second Ground of Justification.
Is, respondents second ground OF
justification, ass above stated, ten
able? A correct nswer to this ques-
ton involves a consideration of GER
tain questions Of fact, as we'll as law.
1t is conceded that the actual and nee