Show THE SGHOOL TAXES Judge Anderson Holds That They are Legal and Valid > YEEY INTERESTING OPINION The case Will bo Appealed t the Supreme Gut and a Temporary Injunction Injunc-tion is Issued Judge Anderson yesterday rendered his decision in the important school tax cases of James Lowe et aI B G Raybould etral and Edward Ashton et al vs Collector Hardy in which the plaintiffs sued for an injunction to restrain the defendant from collecting the special school taxes assessed in several of the old school districts of the city Following is the decision in full and submitted These three cases were argued mitted for decision together and as they involve in-volve substantially the same questions and must disposod of in the same way they will be considered together in this opinion The material facts averred in tho complaint com-plaint are in substance that prior to March 131890 the city of Salt Lake was divided Into twentyone independent school districts tricts That in the month of December 1SS9 the trustees or the qualified voters in each of these several districts except tho Thirteenth and Eighteenth districts pursuant pur-suant Jto the law then in force levied or voted a tax for school purposes on the property of said districts for the school year beginning July 1 1890 which taxes were placed upon the tax books for the year 1890 and that the defendant Hardy is about t proceed to collect the same that said taxes were t be levied and were levied on the assessment of property made in 1890 that the percentage of tax levied by the several school boards varied from 2t mills on each dollar in some districts to 12 mills in others while in districts thirteen and eighteen no ta was levied That by reason of a sudden and unexpected rise in the value of real estate between the time when said taxes were levied and the time when the property was assessed in the month of January 1S90 said levies wil produce more money than will be Deeded ion school purposes in the districts that levied the same and that the excess i so great as t be oppressive that on the 13th day of March 1690 the legislative assembly of Utah passed an act making the entire city of Salt Lake one school district embracing within the same all the territory terri-tory within said twentyone districts and tr twentcne abolishing said districts and providing that the school houses and other school property belonging t said several school districts shall become the property of the newly created school district in Salt Lake city and that any levy of taxes and assessments assess-ments for school purposes that have been or were then being made should bo continued contin-ued and completed and the taxes should be collected and used by the Board of Educa tion of the school district of Salt Lake city for school purposes that by reason of unequal un-equal percentage of taxes levied by the several districts the burden of taxation for the support of the schools in the new district dis-trict of bait Lake city for the school year beginning July 1 1890 is render unequal and that taxes levied for tho special use and benefit of the districts will under the dstriot wi present pre-sent law bo used for the benefit of portions por-tions of the new district in which but a tons small levy or none at all vas made that the complainants are residents and taxpayers tax-payers owning property within certain of the old districts of said city and they ask that the defendant be restrained from collecting col-lecting said taxes and that the tax be cancelled can-celled In the caso of James Lowe et aI vs L G Hardy et al the complaint allege that the complainants are taxpayers in what was formerly school district No 1 in said district that in December 1SS9 the people of the district voted a levy of 10 mills on the dollar for the purpose of pay ing off 0 debt of 5500 then existing against said dstrict and which would have produced pro-duced under former valuations the amount required but owing to the great advance in value under the assessment made in 1890 10927 in excess of the amount necessary neces-sary t pay said debt will have to be paid the taxpayers of said district and which i collected will accrue to the benefit of the entire new district of Salt Lake that a levy of 4 mills on the amount of the assessed as-sessed valuation of the property of said district for 1890 would raise sufficient to pay oft said debt which amount complainants complain-ants aver a willingness to pay and ask that the other 6 mills of said levy be cancelled and its collection enjoined i Upon presentation of these complaint a temporary restraining order was issued and served on defendants and they were also ns required t appear and show cause why an injunction should not be issued restraining them from collecting said ta The de fenddant appeared and filed a demurrer to tho complaint in each case upon the ground that the complaint did not contain fact sufficient t constitute a cause 01 action or to entitle the plaintiffs t the re liefs demanded or any relief whatever I will be impossible to discuss a the points urged by the very able and learned counsel for the plaintiffs against the validity valid-ity of these taxes without extending th opinion to too great a length I shall content myself therefore bJ briefly upon referring t those principles relic 1 It is contended that by abolishin the several school districts and the repea of the law under which the taxes wer < levied and assessed and before the assessment assess-ment had been completed and the ta placed on the tax collectors books that th < taxes themselves were abolished and al n further proceedings in relation t said taxe were rendered illegal and void 2That the legislature had no power tc appropriate taxes levied upon themselve by the old school district for their own us and not yet collected t the use and benet of the new distnct composed in part of th territory not contributing thereto 3That the tax is illegal and void as a tax for the new district because unequal S and not levied under a uniform rule applicable appli-cable alike to all portions of the appl I is undoubtedly the general rule in the construction of the statutes that when an act of the legislature is repealed it is to be considered except a to transaction transactons passed and closed as i it had never ex istd But this rule is not universal and whether applicable in a particular case depends upon the terms of the repealing re-pealing act or the circumstances of the ro ce An act repealing a statute mayjpro vide that it shall not go into effect until a I future day in which rase the former law on the subject will remain in force until that day and business may be transacted I and rights acquired and enforced under the old law until the repeal takes effect or i i the repealing statute is t take effect i immediately the legislature may by I I a saving clase provide that rights accrued under the former law may be enforced and that actions already I begun may be prosecuted t final determination de-termination Endlich on Statutes section 4S36 but a saving clause has been held not t bo necessary t authorize the collection of the tax where the statute under which it was laid was repealed after the tax had been assessed but before it had been collected where such collection was in accordance with what was deemed the intention of the legislature Town of Belvidue vs Warren War-ren R R Co 34 N J L 195 In that case the court says the retroactive effect which is to be given t statutes is largely a question of intention and that although in criminal on penalmatters it may be unobjectionable unob-jectionable to require express words in the repealing act preserve punishment and J penalties yet nevertheless when rights Jit are given either to an individual or t the public it is obvious that a somewhat less arbitrary and inflexible test should be resorted sorted toBy By section 115 of the act in question in these cases the existence of the old school district comprising what is now the dis districts of Salt Lake City and also the term office of the trustees of said dis ricts were continued until July 1 18DO so that the taxes voted by these districts upon the old districts the time when former statutes prior to them selves had been levied under the ceased to exist and as the proceedings for the collection of the taxes after the return of the assessment roll by the assessor do not depend upon the statute repealed these cases come within the rule laid down in the I New Jersey case above referred t But the legislature not leave the question of its intention as to the collection of these taxes to construction but in express terms provided that the repeal of the old law should not have the effect t invalidate axes levied by the old districts Section 135 provides as follows viz Nothing in this act shall be construed as intended to bate Impair or invalidate any levy of taxes or assessments therefor which has been or is now being made in any school district or county in this territory and all such assessments shall be continued and completed and the taxes levied shall be collected lected in the manner provided by law I the legislature had power to provide pro-vide that the school houses of the old districts icts or other property or money on hand should beceme the property of the new dis rict no good reason can be given why it could not provide that taxes levied by tho old districts but not yet collected should be collected and become the property of the new district The authorities are all to the effect that municipal corporations or quasi corporations such as towns cities counties or other political subdivisions are but the creatures of legislative power and subject to its control These corporations may be nlarged diminished divided abolished or two or more may be consolidated as the leg islature may deem best Dillon municipal Corporations Secoti Upon a division of such corporations the legislature may apportion ap-portion the common property and the common burdens t them shall seem reasonable sonable and equitable and may even go to the extent of providing that a certain por tion of the property of the old town shah go t the new corporation Laramie county vs Albany county et al9i D S307 Dillon on Municipal Corporations See 63 In the case of Laramie county vsAl bany county above referred to the su premo court of the United States while admitting that injustice and hardship may be suffered in some cases say the question queston Is a legislative and not a judicial one and that the power to prescribe the rule by which a division of the property of the old town shall be divided is incident to the power to make the tdivision Further on in that case i said Regulations upon the subject may be prescribed by the legislature legisla-ture but i they omit t make any provisions pro-visions in that regard the presumption must be that they did not consider that any legislation in the particular case was necessary neces-sary In that case the county of Laramie was largely in debt and the legislature created two additional counties out of a portion of its territory Albany and Carbon coun ies taking away more than twothirds ol its territory and taxable property without making any provision that the now coun ties should pay any portion of this debt Laramie county paid the debt and brought suit against the two new counties to compel com-pel them to pay their just proportion of such indebtedness The territorial courts held that it could notrecover and the supreme su-preme that decision court of the United States affirmed In the present case the legislature hav ing the power t abolish the old district and create a new district comprising the same territory and to transfer the property t proper-ty of the old districts to the new one as their successor I am of the opinion that ii could also transfer uncollected taxes leviec by the old districts to the new district th < money to be used for the same purposes fOI which they were levied and partly for th < benefit the districts that levied them But it is contended that this holding would violate the rule that taxes must bf uniform and be borne equally all withir the territory to be taxed It is undoubted ly the established rule that all laws for thi collection of revenue must provide tha taxes shall be equal and uniform but tht statute under consideration is not oon < primarily for the raising of revenuejam the inequality complained of is but an incident inci-dent of the abolition of the old district and their consolidation into a new district The people of the old districts levied thesi taxes upon themselves and they wen uniform in the several districts whei levied and the people will have no more t pay than i their districts had not beei abolished No fraud or illegality is abolshed iegalty allege I in the levy or assessment Owing to th advance in value of real estate the lev produced more than was expected whei the levy was made but a rise or fall ii values is no reason for not paying a valii vall tax taxWithout Without dwelling further on the subjecl I am of the opinion that the taxes in question ques-tion are legal and valid and that these applications ap-plications to enjoin their collection shoul be denied Judge Anderson afterwards allowed temporary injunction in favor only of th parties to the suit restraining the collecto from collecting tho taxes assessed agains them until the matter has been decided b L the supreme court to which an appeal ha been taken appea Before Judge Zane In the Third district court yesterday th l closing arguments in the case of Blazzar et aL vs Watts et aL were made and th I case was taken under advisement The ti I tie to real estate valued at 75000 is ii yolved in this case and the lea questior involved are very important I In the case of Peter Anderson vs tt I Utah Pump company et aL an order t made to show cause on December 9 In the case of A J Burt vs H VI > Brown the hearing on motion for a ne S trial was set for December 9 I |