Pasadena Junior College District v. Board of Supervisors

This is an original proceeding in mandamus to compel the defendants to levy, assess and extend a tax sufficient to repay the plaintiff junior college districts, moneys expended by them during the school year, 1930-1931, for educating pupils residing in the county of Los Angeles but not in any junior college district.

The plaintiffs are junior college districts organized under the laws of the state of California and the trustees of the respective districts. During the school year 1930-1931, each of the plaintiff junior college districts received in their junior colleges and educated therein, pupils who resided in Los Angeles County and not in any junior college district and expended the following amounts respectively for such purpose:

Pasadena Junior College..............$114,016.83

Glendale Junior College............... 44,869.86

Compton Junior College.............. 94,334.75

Long Beach Junior College............ 30,163.34

Fullerton Junior College.............. 25,103.24

Chaffey Junior College............... 33,512.37

The superintendent of schools of Los Angeles County on July 20, 1931, pursuant to sections 4.630 to 4.634 of the School Code (as then existing), reported these amounts to the Board of Supervisors of Los Angeles County, which, together with the claims of other junior college districts, constituted the amount to be raised for the junior college tuition fund. Among the students who were enrolled in plaintiff junior college districts and the cost of whose education was included in said districts, were students who resided in the Los Angeles City High School District. This

Name Deduction Further Total

of for Deduction Still

District Los Angeles to Reduce Due

Pupils Tax Rate District

Pasadena ....... $24,739.22 $ 55,738.52

Glendale........ ...... 29,138.02 4,688.09 33,826.11

Compton ........ ...... 65,376.34 8,629.61 74,005.95

Long Beach .... ...... 22,114.57 2,398.53 24,513.10

Fullerton ....... ...... 784.01 7,247.13 8,031.14

Chaffey ......... ...... 704.80 9,776.66 10,481.46

Totals........... ......$149,117.04 $57,479.24 $206,596.28

If the tax levy of 2 6/10c ($.026) per $100 as to real property and 1 l/10e ($.011) per $100 as to personal property fixed by the Supervisors for the junior college tuition fund had been levied on all property in the county outside of junior college districts and inclusive of property within the Los Angeles City High School District, more than sufficient funds would have been raised to repay plaintiffs the amounts due them for educating pupils residing outside of junior college districts during the school year 1930-1931, and if a levy were made this year for the purpose of meeting the deficit and was levied only upon property formerly situated in the Los Angeles City High School District, the rate would not exceed the said rate of $.026 on real property and $.011 on personal property.

It is to be noted that while the school tax estimates are to be submitted on the twentieth day of July in each year (Pol. Code, sec. 3714, subd. 1), and in the instant case the estimate then submitted by the superintendent included the full amount necessary to pay to plaintiffs the cost of educating pupils residing outside of junior college districts, and while these estimates cannot be changed or modified by the Board of Supervisors (Pol. Code, see. 3714, subd. 4), and no change can be adopted even as to the county general tax after the 30th of August (Pol. Code, sec. 3714, subd. 4), the board and superintendent of schools, in the instant case, did, on the thirty-first day of August, 1931, reduce the amount of the estimate for the junior college tuition fund

On May 16, 1932, plaintiffs made a demand upon the Board of Supervisors that it recognize and allow the deficit thus created as a valid claim against the junior college tuition fund and provide funds for its payment by a levy to be made this year (1932) upon property liable for the deficit. The board, by resolution adopted on the same day, refused to recognize or allow the claim or to take any steps whatever looking toward the raising of money for the purpose of paying the same. This proceeding then followed such refusal.

It is the position of respondents in the first place that the levy for the junior college tuition fund tax made on or about September 1, 1931, was made to pay current expenses for the school year, 1931-1932, and not for the next preceding school year 1930-1931, and, therefore, as the Los Angeles Junior College District had been organized prior to the commencement of the school .year 1931-1932, the Board of Supervisors of the County of Los Angeles was without authority to levy a tax on the property situated ■ therein to pay any expenses incurred by the plaintiffs’ junior colleges for the year 1931-1932. The factual situation which the respondents contend existed at the time of .the levy of said tax is inconsistent with and directly contrary to the stipulation of facts signed by the parties and filed herein. Paragraphs IV and VI of said stipulation read as follows:

“IV.

“That at all times herein mentioned one A. R. Clifton was the duly appointed, qualified and acting Superintendent of Schools of said Los Angeles County, and G. F. Gairing was his duly appointed, qualified and acting deputy; that on July 20, 1931, the said County Superintendent of Schools, by said deputy, made to said defendant Supervisors and to said defendant Auditor a written report, in which he showed and stated that the plaintiffs had expended the sums above set forth during the school year 1930-1931, in

educating junior college pupils, residing in said Los Angeles County and not in any junior college district; that said report referred to the sums so spent by plaintiffs during the school year 1930-1931 and all of the defendants above named understood and were aware of said facts. That said report was correct and correctly set forth the true amounts expended by junior college districts, including plaintiffs, during the school year 1930-1931, in educating pupils residing in said Los Angeles County and not within a junior college district.

“VI.

“That following the receipt of said report of said County Superintendent of Schools of Los Angeles County, the said defendant Supervisors and said defendant Auditor represented to said County Superintendent of Schools that the cost of educating pupils residing in said Los Angeles City High School District during the school year 1930-1931 could not and should not be included in the tax to be levied by said defendant Supervisors in September, 1931, for the purpose of raising money for the junior college tuition fund for educating pupils residing in Los Angeles County and not in any junior college district, for the reason that a junior college district had been organized in said Los Angeles City High School District in 1931, to-wit, said Los Angeles City Junior College District, and directed said Superintendent of Schools to deduct from the said cost incurred by plaintiffs, as aforesaid, all costs incurred in educating pupils residing in said Los Angeles City High School District.”

It clearly appears from the facts thus stipulated that the report of the superintendent of schools made in July, 1931, and the action of the Board of Supervisors in making the levy on or about September 1, 1931, both related to and were taken for the purpose of reimbursing the junior colleges for the cost of educating students, residing in the county of Los Angeles and outside of any junior college district, for the next preceding school year (1930-1931), and not for the succeeding school year (1931-1932). At the time of said levy, September 1, 1931, the law governing the subject was found in sections 4.270 and 4.271 (Stats. 1931, pp. 2575, 2576), which are as follows:

“4.270. Not later than the twentieth day of July of each year the superintendent of schools of each county in which there is not a junior college shall certify to the board of supervisors and to the county auditor of such county the total cost for education during the next preceding school year of all junior college pupils residing in such county and not in any junior college district and the estimated amount needed for that purpose for the current year.

“The said total shall not include outlays for permanent construction or improvements, nor moneys received from state apportionment, but shall include sixty-five dollars per unit of average daily attendance for the use of buildings and equipment.

“4.271. The board of supervisors with whom such certificate is filed must, at the time of making the tax levy for that year for county purposes, levy a special tax upon all taxable property in the county not situated in any junior college district, sufficient in amount to defray the costs, during the preceding school year, of educating all junior college students residing in such county and not in any junior college district.”

It will thus be seen that under the law in force at the time of said levy and which remains unchanged, it was the duty of the Board of Supervisors to “levy a special tax . . . sufficient in amount to defray the costs, during the preceding year, of educating all junior college students residing in such county and not in any junior college district ’ ’.

It is apparent, therefore, that the superintendent of schools and the Board of Supervisors at the time of said levy were governed by the provisions of these two code sections. Under the law it was their duty to provide for the reimbursement of the junior colleges for money already expended by said colleges during the preceding year for the educating of students residing in the county of Los Angeles and not within any junior college district. They made certain deductions from the amounts actually expended by the plaintiffs in the education of these outside students, and the Board of Supervisors refused to levy a tax on property within the former Los Angeles City High School District, then within the Los Angeles City Junior

“That junior college districts have uniformly presented claims to the Superintendent of Schools showing the cost of educating students residing outside of junior college districts during the preceding school year and that the Superintendent of Schools has submitted this cost as being the amount necessary for the junior college tuition fund and that junior college districts have reimbursed themselves from moneys received from such fund for their expenditures made during the preceding school year for the education of such pupils.”

From this stipulation it appears that it had been the uniform practice for junior colleges to be reimbursed for expenditures incurred by them in the education of outside students by a tax levy made during the school year immediately following that in which said expenditures were made. This being the case, the money raised by the tax levy of September 1, 1930, did not pay the plaintiff districts for the cost incurred by them during the year 1930-1931 but was for the cost incurred during the preceding year (1929-1930). Respondents contend that under the law as in force prior to the enactment of section 4.271 of the School Code in 1931, which was in reality only an amendment of section 4.631 of said code, there was no authority vested in the Board of Supervisors for levying a tax to pay the cost of educating outside students for the next preceding year but that said section 4.631 of the School Code, and the corresponding provision of the statute creating junior colleges (Stats. 1921, p. 714) each ex

Having determined that it was the duty of the Board of Supervisors of the County of Los Angeles to levy a tax “sufficient in amount to defray the costs during the preceding school year, of educating all junior college students residing in such county and not in any junior college district”, we will now take up the deductions which the superintendent of schools under the direction of the Board of Supervisors and later the Board of Supervisors in effect made from the actual costs incurred by the plaintiffs for the education of such students for the school year 1930-1931. The first of these deductions was the sum of $149,117.04, which was made by reason of the fact that the Los Angeles City Junior College District had been organized on July 1, 1931, after the close of the school year 1930-1931. The other deduction amounting to the sum of $57,479.24 appears to be simply the result of an arbitrary act of the officials, and

The deduction of $149,117.04 by reason of the fact that the Los Angeles City Junior College District had been organized prior to the tax levy of September 1, 1931, is justified by the respondents under the terms of the statute (sec. 4.271 of the School Code), which limits the levy therein provided for to “taxable property in the county not situated in any junior college district”. According to the strict letter of the statute the action of the Board of Supervisors in making this deduction might be sustained. Respondents rely upon the ruling of this court in the case of Hughes v. Ewing, 93 Cal. 414 , 419 [ 28 Pac. 1067 ]. In that ease the board of supervisors of Fresno County levied a tax upon land which had been excluded from the Fresno city school district. The purpose of the tax was to pay for a school building which the electors of the district had voted to construct just prior to the exclusion from said district of the lands sought to be taxed. The board levied the tax upon all property within the district at the time the vote was taken, including the excluded lands. Plaintiffs, the owners of said excluded lands, brought said action to declare the tax null and void. The action was finally determined in their favor, not because the excluded lands were not within the district at the time of the levy, but because the owners of said lands would receive no benefit whatever from the building to be constructed. In that case it was sought to justify the levy of the tax upon the excluded territory by resort to a strict construction of the statute which provided that the levy of the tax should be

Finally the respondents contend that there is no power or authority in the Board of Supervisors of Los Angeles County to make a relevy of taxes to meet the amounts illegally and unlawfully deducted by said board in their levy of September 1, 1931. By reference to section 4.271 of the School Code it will be seen that it is made the duty of the Board of Supervisors to levy this tax “at the time of making the tax levy for that year for county purposes”. The time fixed for the levy of taxes for county purposes is fixed as not later than September 1st. It is now argued by the respondents that as the Board of Supervisors levied a tax on September 1, 1931, for the purpose of defraying the cost of educating outside junior college students for the preceding year, even though the tax levied was not sufficient for that purpose, said board has no power or authority to make a relevy at the appointed time in the year 1932 to make up said deficit due to the insufficient levy of the previous year. If the board is without such authority it follows, of course, that the court will not issue its writ of mandate to compel the performance of an illegal or idle act. Respondents have cited four cases in support of their assertion that the Board of Supervisors has no right or authority to make such relevy. The earliest of these cases is Board of Education v. Common Council, 128 Cal. 369 [ 60 Pac. 976 ], This ease involved an application for a writ of mandate to compel the common council of San Diego to levy a tax for the purpose of maintaining the public schools of San Diego for the fiscal year 1899. The common council refused to make such a levy. The petitioner then applied to the Board of Supervisors of the county to levy the tax. The board levied the tax and that tax had been paid. On page 370, the court said: “It is . . . apparent that the object sought to be obtained by the writ asked for has already been accomplished through a different instrumentality.” The court, therefore, held- that the writ would not issue to

The next case cited is the case of Board of Education v. Common Council, 1 Cal. App. 311 [ 82 Pac. 89 ]. The opinion therein is very brief. It simply follows Board of Education v. Common Council, 128 Cal. 369 [ 60 Pac. 976 ], Bach action arose under the charter of the city of San Diego.

McDonald v. Richards, 79 Cal. App. 1 [ 248 Pac. 1049 ], is the third case cited by respondents. That action was brought against the county auditor to compel that officer to levy a tax for high school purposes to meet the deficit caused by the failure of the Board of Supervisors to levy a sufficient tax to raise the amount required for the maintenance of the high school during the school year 1925-1926. It was sought by that proceeding to change and increase

The fourth and last case cited by respondents is Rice v. McClellan, 202 Cal. 650 [ 262 Pac. 1092 , 1093], This action was filed September 29, 1927. It was instituted by the board of trustees of the La Baldona high school district against the members of the Board of Supervisors of the county of Los Angeles, and by means thereof the plaintiffs sought a writ of mandate directed to the defendants commanding them to levy a tax sufficient in amount to maintain said high school for the school year 1927-1928. The time fixed for the levy of said tax was not later than September 1, 1927. This court very. properly held that ‘ ‘ The time' has passed when that may be done.” That ease like the others cited by respondents and discussed above involved an application for a writ of mandate to compel the Board of Supervisors to levy a tax during the current year after the levy date had passed. These cases do not involve the question as to whether a tax can be levied in the subsequent year for an obligation already incurred. After the date upon which the tax can be levied has passed, obviously a.

The authorities just discussed shed but little, if any, light upon the question before us, which is whether the Board of Supervisors may levy a tax during the present year to make up the deficit in last year’s levy caused by the board’s failure to levy a tax sufficient to meet the legal demands of the plaintiffs for educating outside students during the school year of 1930-1931. We have seen that the claims of plaintiffs were legal demands against the territory situated in the county of Los Angeles and outside of junior college districts. They in reality constituted a debt due plaintiffs by the property owners residing in said territory. It would be most unjust and inequitable to hold that the plaintiffs’ right to recover their just demands may be defeated by the refusal of the duly constituted officials to perform their duty. This precise question seems never to have been before the appellate courts of this state. It would seem, however, that the law is impotent indeed if it afforded no remedy for redressing such a palpable wrong. At least one California case appears to lay down a rule of law that might well be applied in the present proceeding. In the case of Nevada Nat. Bank v. Board of Supervisors, 5 Cal. App. 638 [ 91 Pac. 122 , 128], the board of directors of an irrigation district failed to levy taxes for the purpose of paying certain bonds and interest thereon as required by law. Plaintiff, the owner of certain of said bonds, obtained a judgment against the district for the amount of the principal and interest due on said bonds, and thereafter brought an action to compel the levy of an assessment sufficient to pay the same. The district, like the respondents in the instant case, contended that when the board of directors failed at the time fixed by law to levy the taxes for the payment of said principal and interest, its power became exhausted and that it was without authority at any time thereafter to levy any tax for said purpose. This contention was not sustained by the trial court, but judgment was given in plaintiff’s favor. On appeal, the court, in sustaining the judgment, said: “We are not inclined to consider the law so impotent as is implied by appellants’ argument. We hold that the burdens of the property owners have not been increased, since they in

So in the present ease, the burden on the property owners is not increased by compelling them to pay this year what they by right should have paid last year. Furthermore, there is nothing in statutes governing the levy of the tax in question which expressly or by implication prohibits a levy of the tax during the present year after the failure of the Board of Supervisors to perform their duty in that respect at the time fixed for the levy of last year.

In other jurisdictions there is to be found ample authority in support of petitioners’ contention in behalf of the legality of the relevy. The case most directly in point is one from the Supreme Court of Iowa, Perrin et al. v. Benson, 49 Iowa, 325 . In that ease it was said, “As we understand, the question for determination is, where the authority of the Board of Supervisors is full and complete, and it is their duty to levy school-house taxes at the proper time in 1875, and they neglected to do so, whether they have the power to make such levy in 1876, at the time provided by law for levying taxes.” In that ease the board levied the taxes in 1876, and the action was brought to enjoin its collection. The court further held, “As it was the duty of the Board of Supervisors to make the levy, mandamus would lie to compel the performance of such duty. Suppose this course to have been taken, a disposition of such action in all probability could not have been obtained during 1875. If not the compulsory levy could not have been made earlier than 1876.” Some discussion was had as to whether the tax could be levied after the year 1876, and if not levied in 1876 whether the right to compel the levy might not have been thereby waived. Following this discussion the court used this direct and significant language: “We do not determine at what time the tax will be deemed waived because of a failure to make a levy at the time provided by law. What we do hold is, that where a levy is not made at the proper time, through negligence or mistake, it may be made at the time fixed by law for making the succeeding tax levy.”

The case of Hubert v. New Orleans, 215 U. S. 170 [ 54 L. Ed. 144 , 30 Sup. Ct. Rep. 40 , 43], is also in point. In this case it appears that a tax levy was required to meet 'the obligations of the city of New Orleans to pay certain sums authorized to be raised by taxation for the support of the metropolitan police. The tax had been levied and collected. It was not, however, paid over but was diverted to other purposes. The court held that the board did not exhaust its power until the obligation fixed by the statute had been actually satisfied, and that if there had been a diversion of the money raised by a levy in one year this did not prohibit a levy in a subsequent year to take care of the obligation which should have been by a tax levy of the preceding year. The court there stated, “The city exerted its power, as required by law, levied and collected the taxes, but applied them to other purposes, and has failed to turn them over on demand. We think the power to levy these taxes still exists. As to the creditor, deprived thereof by the action of the city, it is as though such power had never been exercised.” That is a much stronger case than the case at bar. There the board had acted and levied •the tax as required by law, but failed to legally apply the proceeds. Here the Board of Supervisors has failed to act at all in so far as the territory within the present Los Angeles City Junior College District is concerned. If the

The only remaining question for consideration is as to the manner of levying the tax, or as to the precise property on which the levy should be made. This question we think has been simplified by the stipulation of the parties filed herein. According to this stipulation, in 1931 for the purpose of reimbursing the plaintiffs for the cost of educating outside students in said year, a levy of 2 6/10c ($.026) per $100 of valuation as to real property and 1 l/10c ($.011) per $100 in valuation as to personal property was levied upon all taxable property situated in the county of Los Angeles, and outside of any junior college district, except the property situated in Los Angeles City High School District, later organized into the Los Angeles City Junior College District, and “that if a levy were made for the fiscal year 1932-1933 exclusively on all taxable property situate in said Los Angeles City High School District sufficient to raise enough money to pay the balance claimed by plaintiffs, the owners of said property would not be called upon to pay as high a tax on their property for said purposes as the amount of the tax levied and paid upon all other property in said county not situate in a Junior College District during the school year 1930-1931.” It will thus be seen that all property situated in the county of Los Angeles (except that formerly within the Los Angeles City High 'School District), which was liable and subject

It is, therefore, ordered that a peremptory writ of mandate issue out of this court directed to the respondents commanding them to allow the sum of $206,596.28 as a proper claim and charge against the junior college tuition fund in favor of the plaintiffs for the amounts expended by them respectively during the school year 1930-1931, for educating pupils residing in the county of Los Angeles but not in any junior college district, and further that said Board of Supervisors levy, assess, and extend at the time of making

Langdon, J., Preston, J., Shenk, J., Waste, C. J., Seawell, J., and Tyler, J., pro tem., concurred.