Leon SHEPHERD et al., Appellants, v. SAN JACINTO JUNIOR COLLEGE DISTRICT et al., Appellees, 363 S.W.2d 742

NORVELL, Justice. The question involved in this appeal is whether or not that portion of

Article 2815h, § 7 Vernon’s Ann.Civ.Stats. which provides that a junior college district may levy and collect a local ad valorem tax for the support and maintenance of a junior college is a valid constitutional enactment. The appellants, Leon Shepherd and others, own real property within the boundaries of the appellee, San Jacinto Junior College District which is organized as a Union Junior College District under the provisions of

Article 2815h, Vernon’s Ann.Tex.Stats. Said landowners, as plaintiffs in the District Court, sought to enjoin the collection of a local ad valorem tax levied by the school district for maintenance purposes. They recognized the legal existence of the district and conceded that the tax is authorized by the wording of

Article 2815h, § 7, but asserted that the statute is unconstitutional insofar as it undertakes to authorize the levy of ad valorem taxes for the support and maintenance of a junior college. The trial court upheld the validity of the statute and denied the injunction. Leon Shepherd and his co-plaintiffs have appealed to this Court as permitted by

Article 5, § 3b, Texas Constitution,

Article 1738a, Vernon’s Ann.Tex.Stats, and Rule 499a, Texas Rules of Civil Procedure. Preliminary to setting forth the contentions of the parties, we may properly allude to some well-recognized principles of constitutional law which are applicable here. A state constitution, unlike the federal constitution, is in no sense a grant of power but operates solely as a limitation of power. “All power which is not limited by the constitution inheres in the people, and

an act of a state legislature is legal when the Constitution contains no prohibition against it.” Watts v. Mann, Tex.Civ. App., 187 S.W.2d 917, wr. ref., 11 Am.Jur. 619, Constitutional Law, § 18. All intendments are against restrictions upon the legislative power and the applicable rule was stated by this Court in State v. Brownson, 94 Tex. 436, 61 S.W. 114 as follows: “The legislative department of the state government may make any law not prohibited by the constitution of the state or that of the United States. Therefore the rule is that, in order for the courts to hold

an act of the legislature unconstitutional, they must be able to point out the specific provision which inhibits the legislation. If the limitation be not express, then it should be clearly implied.” It follows that if there be no limitation found in the Constitution, the legislature would be fully empowered to create or authorize the creation of junior college districts and authorize them to levy an ad valorem tax.

The appellants do not dispute the rules above stated nor do they contend that the Constitution in so many words provides that the legislature shall not authorize a junior college district to levy an ad valorem tax. They do, however, say that the legislative power to authorize a local ad valorem tax for junior colleges is denied by clear implication. There have been a number of briefs filed in this case by Amici Curiae, including one by the Attorney General.

As opposed to appellants’ theory of implied limitation, the briefs submit two theories: (1) that there is no provision of the Constitution which either expressly or impliedly prohibits the legislature from establishing á' junior college district and authorizing it to levy an ad valorem tax, and (2) that the legislative power to authorize a junior college district to levy an ad valorem tax is supported by the provisions of

Article 7, § 3 of the Constitution. The majority of this Court is of the opinion that

Article 2815h, § 7 should be held valid and enforceable under the second theory above mentioned. The solution of the problem is not free, of difficulty. Our school laws have been characterized as confused, vague and conflicting. Barber v. County Board of Trustees, Tex.Civ.App., 43 S.W.2d 319, no wr. hist., and lack of clarity is found in both, constitutional and statutory enactments.

Article 7, § 3 of the Constitution which is of importance here has been amended some six times since its adoption as a part of the Constitution of 1876. These amendments must be noticed in some detail in order to arrive at a proper understanding of the historical background of the case. A junior college district is here involved and while some state schools bearing a resemblance to the present day junior college were in existence prior to 1929, the regional junior colleges for the most

part came into existence as a result of the passage of the Junior College Act. Acts 1929, 41st Leg., p. 648, ch. 290. See,

Article 2815h, Vernon’s Ann. Tex.Stats. for the 1929 Act and amendments thereto. The last amendment to

Article 7, § 3 of the Constitution was adopted in 1926, so that the form of

Article 7, § 3, as it existed after 1926, is of controlling importance here. Some difficulty of classification has arisen ■with reference to junior colleges and the regional districts supporting them. Undoubtedly the framers of the Texas educational system envisioned a system of schools extending from those of an elementary grade to those of a university level, that is, elementary schools, secondary schools or high schools and colleges and universities.

The junior colleges, developed for the most part since 1929, are sandwiched in, so to speak, between the high schools on one hand and the colleges or universities on the other hand. In certain respects, the junior college is what its name implies, that is, a school which is above the high school level yet one whose highest grade is below the educational level required for a degree from a university.

Yet, as pointed out by one of the briefs on file here, it would not be inappropriate to refer to the districts which support such schools as “junior college districts,” “advanced independent school districts” or “graduate high school districts.” The point of this is that junior colleges and their districts may in some instances be regarded as colleges and in other instances as schools in the nature of advanced high schools. The Junior College Act itself makes numerous references to independent school districts when delineating the powers and operations of a junior college district.

The Texas junior college history bears some relation to the experience of other states with secondary schools, that is, high schools or college preparatory schools. As above indicated,

Article 7, § 3 of the Constitution is a rather patched up and overly cobbled enactment.

In order to meet situations deemed undesirable by the people of Texas, which were pointed up by the decisions of this Court, amendments have been adopted which in turn led to further unwanted and perhaps unforeseen results. .While one could wish for a clearer statement of fundamental law than that contained in the 1876 Constitution and the one hundred or so amendments thereto, we think the way-to decision in this case may be made discernible by placing the constitutional provisions, the decisions of this Court and the pertinent legislative actions in their proper chronological order.

As above indicated, we are not to decide this case upon the basis of the Constitution as it existed in 1876 but rather upon the Constitution as it existed in 1929 after numerous amendments had been adopted thereto.

Article 7, § 3 as it appeared originally in the Constitution of 1876 provided that: “Sec. 3. There shall be set apart annually not more than one-fourth of the general revenue of the State, and a poll tax of one dollar on all male inhabitants in this State between the ages of twenty-one and sixty years, for the benefit of the public free schools.” This was the

article of the Constitution under which the case of City of Fort Worth v. Davis, 57 Tex. 225 was decided in 1882. It should be noted that under the original Constitution, the Legislature was vested with plenary power to create or provide for the creation of school districts, or school communities as they were called at that time. 8 Gammel’s Laws of the State of Texas 1035, Acts 1876, 15th Leg., Reg. Session, p. 199, ch. 120; State v. Brownson, 94 Tex. 436, 61 S.W. 114.

It is inferable that during this period in the history of the development of the Texas educational system, schools within the cities and towns were administered for the most part by municipal authorities while the rural schools were controlled by the trustees of the “school communities.” As a result of the decision in Fort Worth v. Davis, the

article was amended in 1883 to avoid the restrictive

interpretation of that case insofar as the power of a school district to levy a maintenance tax was concerned. The

article as amended read as follows : “Sec. 3.

One-fourth of the revenue derived from the state occupation taxes, and a poll tax of one dollar on every male inhabitant of this state, between the ages of twenty-one and sixty years shall be set apart annually for the benefit of the public free schools, and, in addition thereto, there shall be levied and collected an annual ad valorem state tax of such an amount, not to exceed twenty cents on the one hundred dollars valuation, as, with the available school fund arising from all other sources, will be sufficient to maintain and support the public free schools of this state for a period of not less than six months in each year; and the Legislature may also provide for the formation of school districts within all or any of the counties of this state, by general or special law, without the local notice required in other cases of special legislation, and may authorize an additional annual ad valorem tax to be levied and collected within such school districts for the further maintenance of public free schools and the erection of school buildings therein; provided, that two-thirds of the qualified property taxpaying voters of the district, voting at an election to be held for that purpose, shall vote such tax, not to exceed in any one year twenty cents on the one hundred dollars valuation of the property subject to taxation in such district, but the limitation upon the amount of district tax herein authorized shall not apply to incorporated cities or towns constituting separate and independent school districts.” Because of the provision that the “Legislature may also provide for the formation of school districts within all or any of the counties of this state,” this Court held that there was an implied restriction upon the power of the legislature to provide for the formation of school districts in that no district could be created embracing territory in more than one county.

Parks v. West, 102 Tex. 11, 111 S.W. 726 (1908). In the case cited, this Court recognized the plenary power of the legislature over school districts and organizations and stated that the Court of Civil Appeals in its opinion (108 S.W. 466) “very correctly states the rule by which the power of the Legislature is to be tested when it says: ‘The legislative department of a state government may make any law not prohibited by the Constitution of the state or that of the United States. Therefore, the rule is that in order for the courts to hold

an act of the Legislature unconstitutional, they must be able to point out the specific provision which inhibits the legislation. If the limitation be not express, then it should be clearly implied.’ ” It was held however that from the inclusion of the words “all or any of the counties of this state” in the amendment it must be inferred that no district could be formed of territories lying within two or more counties. This decision had to do with the territorial extent of school districts. However, it precipitated a further amendment to the Constitution to overcome the limitation pronounced in Parks v. West.

This amendment was adopted in 1909. Other amendments were adopted in 1908, 1918, 1920 and 1926 relating to such subjects as tax rates, poll taxes, and creation of school districts by special laws. See, Historical Note under

Article 7, § 3, Vernon’s Ann.Tex.Const. The amendments last mentioned have no particular bearing upon the problem at hand other than that they necessitated some rearrangement in wording. However, because of these amendments, particularly that of 1909, there is substantial difference not only in wording but in phrase arrangement between

Article 7, § 3 as it existed in 1908 and as it exists today. There may seem some redundancy in the presently existing

section relating to the assessment and collection of taxes. This, however, serves to emphasize that there now exists in the Constitution a separate and independent clause authorizing “all school districts heretofore formed or hereafter formed” to levy an ad valorem maintenance tax. In other words, the provisions as to the permissible territorial extent of districts and those relating to the taxing power of districts, “heretofore formed and hereafter formed,” have been definitely separated and were so separated in 1926 at the date of the last amendment to

Article 7, § 3.' The

section as it existed in 1926 and exists today reads as follows (the italicized portions indicate the clauses relating to the taxing power of districts “heretofore formed and hereafter formed”) : “Sec. 3.

One-fourth of the revenue derived from the State occupation taxes and poll tax of one dollar on every inhabitant of the State, between the ages of twenty-one and sixty years, shall be set apart annually for the benefit .of the public free schools; and in addition thereto, there shall be levied and collected an annual ad valorem State tax of such an amount not to ■exceed thirty-five cents on the one hundred ($100.00) ■ dollars valuation,' as with the available school fund arising from all other sources, will be sufficient to maintain and support the public schools of this State for a period of not less than six months in each year, and it shall be the duty of the State Board of Education to set aside a sufficient amount out of the said tax to provide free text books for the use of children attending the public free schools'of this State; provided, however, that should the limit of taxation herein named be insufficient the deficit may be met by appropriation from the general funds of the State and the Legislature may also provide for the formation of school district by general laws; and all such school districts may embrace parts of two or more counties, and the Legislature shall be authorized to pass laws for the assessment and collection of taxes in all said districts and for the management and control of the public school or schools of such districts, whether such districts are •composed of territory wholly within a ■county or in parts of two or more ■counties, and the Legislature may au-thorise an additional ad valorem tax to he levied and collected within all school districts heretofore formed or hereafter formed, for the further maintenance of public free schools, and for the erection and equipment of school buildings therein; provided that a majority of the qualified property taxpaying voters of the district voting at an election to be held for that purpose, shall vote such tax not to exceed in any one year one ($1.00) dollar on the one hundred dollars valuation of the property subject to taxation in such district, but the limitation upon the amount of school district tax herein authorized shall not apply to incorporated cities or towns constituting separate and independent school districts, nor to independent or common school districts created by general or special law.” It is argued by the Attorney General that the phrase “school districts heretofore formed or hereafter formed” used in connection with the tax authorization power is broad enough to include junior college districts created under and by virtue of the Junior College Act of 1929,

Article 2815h, Vernon’s Ann.Tex.Stats., and that it would be wholly untenable to say that the phrase which defines one of the two purposes for which taxes may be levied as being for “the further maintenance of public free schools” operated to exclude junior college districts and restrict the meaning of the clause to elementary and high school districts. In support of this view, it is pointed out in an amicus curiae brief filed herein that the final proviso of

Article 7, § 3 should be given some meaning. This clause provides that “the limitation upon the amount of school district tax herein authorized shall not apply to incorporated cities or towns constituting separate and independent school districts, nor to independent or common school districts created by general or special law.” It is urged that, “This exception clearly shows that

Section 3 contemplates that there may be school districts of types other than the three types which are excepted from the tax limitation.” It is further suggested that

Article 7, § 3 does not define what is meant by the term “school district” or “public free school district,” hence this matter is left to the determination of- the legislature. From these considerations and circumstances it is concluded that a district created under the Junior College Act is a “school districts heretofore formed or hereafter formed” within the constitutional meaning of that term as used in the tax authorization clause of

Article 7, § 3. As opposed to the theory above set out, the appellants’ points, as heretofore indicated, present the argument that (1) the Constitution impliedly prohibits the Legislature from authorizing a junior, college district to levy an ad valorem tax for maintenance purposes and hence such tax is invalid unless expressly authorized by some constitutional provision, and that

(2) Article 7, § 3 of the Constitution does not authorize the Legislature to empower a junior college district to levy an ad valorem-tax for maintenance purposes. As supporting their theory of an implied limitation upon the power of the legislature to authorize a junior college district to levy a maintenance tax, the appellants rely upon City of Fort Worth v. Davis (1882), 57 Tex. 225. It may be and is argued with plausibility that this 1882 case can hardly be considered as authority for denying to the legislative branch the power to authorize a junior college district to levy a maintenance tax.

However that may be, if we assume for present purposes that under the Constitution as it existed in 1882, no such tax could be authorized by the legislature, it does not follow that the tax could not be supported under the constitutional provision as it existed in 1929, after

Article 7, § 3 had been amended a number of times. Appellants argue, however, that despite these changes the implied constitutional prohibition upon the legislative power persists insofar as junior college districts are concerned. It is said that a junior college district is not the type of district comprehended by the tax authorization provision of Constitutional

Article 7, § 3. As their authority for this position they cite Williams v. White, Tex.Civ.App., 223 S.W.2d 278, wr. ref. in which an issue as to the permissible territorial extent of a junior college district was involved. In the Williams case, it was urged that because all of Real, Uvalde and Zavala counties were included within the Southwest Texas Joint County Junior College District, the district was not legally formed because of the provision of

Article 7, § 3 of the Constitution which says that “such school districts may embrace parts of two or more counties.” The implied limitation theory was then urged, i. e., that as the Constitution expressly said that parts of counties could be grouped, it impliedly prohibited the inclusion of entire counties to form a junior college district. This contention was answered by the Court of Civil Appeals in two ways: The Court pointed out that junior colleges were akin to institutions of higher learning and cited Mumme v.

Marrs, 120 Tex. 383, 40 S.W.2d 31 wherein it was recognized that institutions of higher learning could be created by the legislature without direct constitutional grant, It was also said that if junior college districts be considered in the same class as common and independent school districts, then “the proviso relating to ‘parts of two or more counties’ should not be construed as prohibiting the combination of entire counties into joint (junior college) districts.” The portion of the decision in Williams v. White relied upon by the appellants does not relate to the taxing provision of

Article 7, § 3 but rather to the grouping or inclusion of territories in forming the district and the resultant effect thereof upon the legality of the existence of the district. Appellants’ argument is essentially that the clause of

Article 7, § 3 relating to the territory that may be included within a school district is so closely related to the taxing clause that by analogy a holding that a junior college district is not circumscribed as to its formation by the territorial provisions of

Article 7, § 3, should dictate the further holding that the district is not comprehended by the tax authorization clause of the article. Appellants’ argument does riot rest entirely upon Williams v. White. However, what has been said fairly presents the contentions set forth in the brief. In

summary, it is appellants’ position that the constitutional phrase “all school districts heretofore formed or hereafter formed” does not embrace junior college districts. As above pointed out, it is the position of the Attorney General that junior college districts are embraced within this phrase and hence the districts’ taxing power for maintenance purposes rests upon a sound constitutional basis. We therefore have a squarely drawn issue presented for our decision. It may be conceded that appellants’ position is buttressed by plausible arguments, but we cannot say that the theory urged by the Attorney General in support of the constitutionality of the taxing

section of the Junior College Act is clearly wrong. In this situation we must examine another well-recognized principle of constitutional law. The construction placed upon the constitutional provision by the Attorney General will result in a holding that the taxing provision of the Junior College Act is valid and constitutional. In Texas National Guard Armory Board v.

McCraw, 132 Tex. 613, 126 S.W.2d 627 it was said with an abundant citation of authorities that: “This Court has repeatedly held that no act of the Legislature will be declared unconstitutional unless some provision of the Constitution can be cited which clearly shows the invalidity of such act. Brown v. City of Galveston, 97 Tex. 1, 75 S.W. 488 ; 9 Tex. Jur., sec. 59, pp. 477, 478, and cases cited in footnotes. The burden is on him who attacks a law for unconstitutionality and courts need not exert their ingenuity to find reasons for holding the law invalid.

As was said by the Supreme Court of the United States in the case of Middleton v. Texas Power & Light Co., 249 U.S. 152, at page 157, 39 S.Ct. 227, at page 229, 63 L.Ed. 527: ‘There is a strong presumption that a Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discrim-inations are based upon adequate grounds.’ “If doubt should be raised as to the validity of a statute, such statute should be held valid unless it clearly violates some provision of the Constitution.” In Smith v.

Patterson, 111 Tex. 535, 242 5.W. 749 it was held that no statute should be declared unconstitutional “unless it is absolutely necessary to so hold.” This case is illustrative of the extent to which the courts will go in order to uphold the validity of a legislative enactment. The Act involved was the representative apportionment act of 1921. By a process of reasoning based upon population figures of which the Court took judicial notice, it was determined that the Legislature intended Swisher County to be a part of District No. 120 and the Act was thus upheld.

In support of its decision the Court quoted the following applicable rules: “In the case of Solon v. State, 54 Tex.Cr.R. [261] 272, 114 S.W. [349], 350, 352, in passing upon the constitutionality of a statute, the Court of Criminal Appeals, in an able opinion by Mr. Justice Ramsey (who after-wards was a member of this court), used the following language: “ ‘The rule is universal that the courts will not declare

an act of the Legislature unconstitutional, unless such infirmity and vice clearly appears. Indeed this rule is necessary, and evidences that respectful regard in which the judicial should hold the legislative department of our government.’ “Mr.

Cooley, in his work on Constitutional Limitations, in discussing this subject, says: “ ‘They (the courts) will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt. A reasonable doubt must be solved in favor of the legislative action, and the act be sustained.’ “In the case of Koy v.

Schneider, 110 Tex. 369, 218 S.W. 479, 221 S.W. 880, this court said: “ ‘A statute will not be declared unconstitutional in a doubtful case. * * * Courts should uphold the statute as valid, unless clearly unconstitutional; every intendment and presumption being in favor of constitutionality.’ “We could quote many texts and many authorities, from our own state and other jurisdictions to the effect that the greatest liberality must be exercised in upholding the validity of a statute and in giving full faith and credit to the acts of the Legislature, a co-ordinate department of government.

We are in hearty accord with these views, and would add our emphasis to them.” The rules above stated apply with particular force when it appears that the legislative and executive departments of government have acted upon an

interpretation of the organic law and there has been general acquiescence in and reliance upon such

interpretation. Constitutional questions are not decided in a vacuum wholly unaffected by the practicabilities of a situation. Administrative

interpretations made under statutory authority which have been relied upon over the years have their proper place and weight in determining constitutional questions. In Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31, (affirming Marrs v. Mumme, Tex.Civ.App., 25 S.W.2d 215), Chief Justice Cureton, writing for this Court, said: “The universal rule of construction is that legislative and executive

interpretations of the organic law, acquiesced in and long continued, as in the case before us, are of great weight in determining the validity of any act, and in case of ambiguity or doubt will be followed by the courts, * (The emphasis is that of the late Chief Justice) See also, San Antonio Union Junior College District v. Daniel, 146 Tex. 241, 206 S.W.

Article 4399, Vernon’s Ann.Téx.Stats. makes it the duty of the Attorney General to give written legal advice to various state departments and agencies, including the committees of either branch of the legislature. In 1927, prior to the passage of the Junior College Act, the legislative branch of government propounded the following inquiry to the Attorney General: “Has the Legislature the constitutional authority to enact a law providing for one or more school districts or counties to organize a junior college district and vote a tax for the support of such junior college?” The Attorney General relying upon

Article 7, § 1 and

Article 3, § 48 of the Constitution answered the question in the affirmative and held that it was the “right and duty of the Legislature to make such provision for such schools and junior colleges as the Legislature in its wisdom deems best.” From 1927 until the present time, this holding of the Attorney General has never been directly questioned in the appellate courts of this State. As a consequence the junior college has become an integral part of the Texas educational system. The number of junior colleges has multiplied,

Article 2815h, et seq., Vernon’s Ann.Tex. Stats., and most of them depend upon the taxes authorized by

Article 2815h, § 7. The clause which provides that, “the Legislature may authorize an additional ad valorem tax to be levied and collected within all districts heretofore or hereafter formed, 'for the further maintenance of public free schools, and for the erection and equipment of school buildings therein; * * * ” has been relied upon by the legislature in sanctioning the issue of junior college district bonds,

Article 2815h, § 7. Numerous bond issues have been authorized by the qualified voters of the various junior colleges of this state and approved as to legality by the Attorneys General who have served the State since 1929. Under these circumstances, we are confronted with a stronger doctrine than that arising from the decent respect which one branch of government should have for the actions of another.

General public acceptance of and acquiescence in a certain construction of a constitution extending over a long period of time, particularly when occasions for the questioning of such construction have arisen repeatedly, gives rise to a doctrine that aifords to such acceptance a persuasiveness akin to precedent. With the sale of every bond issue and the collection of each tax levied, an opportunity was presented to challenge the constitutional tax basis of the junior college districts.

For years no such attack was made with the result that the junior colleges became an essential and desirable element in the Texas scheme of public education. Any impairment in the efficiency of their functions and service capacities at the present time could lead only to undesirable results from the standpoint of the citizenry as a whole. While this public acquiescence could not result in a precedent in the judicial sense, yet, this general acceptance does carry with it a persuasiveness of compelling force.

Where, as hereinabove pointed out, there is a tenable theory supporting the questioned legislative power, the taxing provisions of the Junior College Act should be upheld. The philosophy and reasoning contained in the opinion rendered in Stuart v. School District No. 1 of the Village of Kalamazoo, 30 Mich. 69, is persuasive here. In an opinion written by Mr. Justice Thomas M. Cooley, the author of “Cooley’s Constitutional Limitations,” the Michigan Supreme Court upheld the legality of a tax levied by the Kalamazoo School District for the support of secondary schools.

This is a landmark case in the history of school law development and is particularly applicable here in that the position of high schools in the 1870s was somewhat similar to that of the regional junior colleges as developed in this state from 1930 to 1950. The public high school evolved to meet a public need when in the course of American growth and economic development it became necessary and desirable that the average educational level be raised above that of the elementary schools. Junior colleges came into being to fulfill a similar need which became apparent in the twentieth century.

The complainants in Stuart v. School District sought to enjoin the collection of taxes levied against their property. Among other contentions it was urged that the district was not authorized to levy a tax for the support of high schools because the provisions of the state constitution had not been followed in adopting the legislation which purported to authorize the tax. The Supreme Court, in discussing this contention, likened an attack upon the taxing power to an attack upon the legal existence of this district itself.

The Court, in commenting upon the lapse of time between the commencement of the exercise of the taxing power and the filing of the suit which sought the destruction of that power, drew an analogy between a limitation statute applicable to attacks upon the legal existence of school districts and applied the principle or reasoning supporting such statute to the assault upon the district’s taxing power.

We quote from the opinion: “Whether this particular objection (that the statute authorizing the tax had not been constitutionally adopted) would have been worthy of serious consideration had it been made sooner, we must, after this lapse of time, wholly decline to consider.

This district existed de facto, and we suppose de jure, also, for we are not informed to the contrary, when the legislation of 1859 was had, and from that time to the present it has assumed to possess and exercise all the franchises which are now brought in question, and there has since been a steady concurrence of action on the part of its people in the election of officers, in the levy of large taxes, and in the employment of teachers for the support of a high school.

The state has acquiesced in this assumption of authority, and it has never, so far as we are advised, been questioned by any one until, after thirteen years user, three individual tax payers, out of some thousands, in a suit instituted on their own behalf, and to which the public authorities give no countenance, come forward in this collateral manner and ask us to annul the franchises.

To require a municipal corporation, after so long an acquiescence, to defend, in a merely private suit, the irregularity, not only of its own action, but even of the legislation that permitted such action to be had, could not be justified by the principles of law, much less by those of public policy.

We may justly take cognizance in these cases, of the notorious fact that municipal action is often exceedingly informal and irregular, when, after all, no wrong or illegality has been intended, and the real purpose of the law has been had in view and been accomplished; so that it may be said the spirit of the law has been kept while the letter has been disregarded.

We may also find in the statutes many instances of careless legislation, under which municipalities have acted for many years, until important interests have sprung up, which might be crippled or destroyed, if then for the first time matters of form in legislative action were suffered to be questioned.

If every municipality must be subject to be called into court at any time to defend its original organization and its franchises at the will of any dissatisfied citizen who may feel disposed to question them, and subject to dissolution, perhaps, or to be crippled in authority and powers if defects appear, however complete and formal may have been the recognition of its rights and privileges, on the part alike of the state and of its citizens, it may very justly be said that few of our municipalities can be entirely certain of the ground they stand upon, and that any single person, however honestly inclined, if disposed to be litigious, or over technical and precise, may have it in his power in many cases to cause infinite trouble, embarrassment and mischief. “It was remarked by Mr.

Justice Campbell in People v. Maynard, 15 Mich. [463] 470, that ‘in public affairs where the people have organized themselves under color of law into the ordinary municipal bodies, and have gone on year after year raising taxes, making improvements, and exercising their usual franchises, their rights are properly regarded as depending quite as much on the acquiescence as on the regularity of their origin, and no ex post facto inquiry can be permitted to undo their corporate existence.

Whatever may be the rights of the individuals before such general acquiescence, the corporate standing of the community can no longer be open to question.’ To this doctrine were cited Rumsey v. People, 19 N.Y. 41, and Lanning v. Carpenter, 20 N.Y. 447. The cases of State v. Bunker, 59 Me. 366; People [ex rel. Attorney General] v. Salomon, 54 Ill. [39] 41, and People [ex rel. Attorney General] v. Lothrop, 24 Mich. 235, are in the same direction.

The legislature has recognized this principle with special reference to school districts, and has not only deemed it important that their power should not be questioned after any considerable lapse of time, but has even established what is in effect a very short act of limitation for the purpose in declaring that 'Every school district shall, in all cases, be presumed to have been legally organized, when it shall have exercised the franchises and privileges of a district for the term of two years’; Comp. L.1871, § 3591.

This is wise legislation, and short as the period is, we have held that even a less period is sufficient to justify us in refusing to interfere except on the application of the state itself: [Fractional] School District [No. 1] v. Joint Board, etc., 27 Mich. 3. “It may be said that this doctrine is not applicable to this case because here the corporate organization is not questioned, but only the authority which the district asserts to establish a high school and levy taxes therefor. But we think that, though the statute may not in terms apply, in principle it is strictly applicable.

The district claims and has long exercised powers which take it out of the class of ordinary school districts, and place it in another class altogether, whose organization is greatly different and whose authority is much greater. So far as the externals of corporate action are concerned, the two classes are quite distinct, and the one subserves purposes of a higher order than the other, and is permitted to levy much greater burdens.

It is not very clear that the case is not strictly within the law; for the organization here claimed is that of a union school district, and nothing else, and it seems little less than an absurdity to say it may be presumed from its user of corporate power to be a school district, but not such a district as the user indicates, and as it has for so long a period claimed to be. But however that may be, we are clear that even if we might be allowed by the law to listen to the objection after the two years, we cannot in reason consent to do so after thirteen.

It cannot be permitted that communities can be suffered to be annoyed, embarrassed and unsettled by having agitated in the courts after such a lapse of time questions which every consideration of fairness to the people concerned and of public policy require should be raised and disposed of immediately or never raised at all.” The judgment of the trial court is affirmed. CALVERT, C. J., and WALKER, J., dissenting. . “See. 7.

The Junior College District created under this Act shall have the power to issue bonds for the construction and equipment of school buildings and the acquisition of sites therefor, and to provide for the interest and sinking fund for such bonds by levying of such taxes as will be necessary in this connection.

The Junior College District shall also levy and. collect taxes for the support utó maintenance of the Junior College, provided that no bonds shall be issued and no taxes shall be collected until by vote of the majority of the qualified voters of the Junior College District, at an election called for that purpose in accordance with the provisions of the General Law providing for similar elections in Independent School Districts, such bonds and taxes are authorized. * * * ” . This is not the only argument relied upon to support the validity of the tax provision of the Junior College Act.

As above indicated, appellees urge that there is no implication which can reasonably be drawn from a specific -constitutional provision which would prohibit the legislature from authorizing a junior college district to levy an ad valorem maintenance tax. . It is somewhat unusual to find a case cited as authority for the denial of the taxing power which in the main upholds the validity of the formation of a junior college district and its power to tax. The same case is cited by appellees as authority for the proposition that the tax herein questioned is constitutionally authorized. Williams v.

White, however, does not directly meet the contention raised by appellants here despite tile fact that the trial court made rather broad findings and conclusions supporting both the legality of the district and its taxing power. (223 S.W.2d 281) The holdings of an opinion necessarily must be construed in the light of the contentions made by the litigants. In Williams v.

White the position of appellants in the Court of Civil Appeals was that the district was illegally formed in that three entire counties were included therein contrary to the implied prohibitions against the inclusion of entire counties contained in

Article 7, § 3 of the Constitution, and hence the tax sought to be levied was illegal. In the present ease the argument concedes the legal existence of the district but asserts that because of an implied limitation and the lack of an express authorization, the legislature has no power to authorize a junior college district to levy an ad valorem tax. Specifically, in Williams v.

White the taxing authority of the district was challenged upon the ground that the district had not been legally and constitutionally created (Points 1 and 3); that there was no statutory authority for the questioned tax levy, (Point No. 2) and that a county tax assessor and collector could not act as district assessor and collector of taxes levied against property located within one of the counties of the district. (Point No. 4) It should perhaps be mentioned that certain of the briefs filed herein have construed the condensed and perhaps cryptic reference to an Attorney General’s opinion contained in Williams v.

White as being a reference to the 1927 opinion here discussed. The Attorney General’s opinion referred to was one rendered in 1946 dealing specifically with Sections 7a, 7b and 22 of

Article 2815h which, among other things, provide that a county assessor and eolleetor of taxes may also collect taxes on behalf of a junior college district. (223 S.W.2d 282). . The constitutional limitation is one dollar on the one hundred dollars valuation. The statutory limit in the Junior College Act is twenty cents upon the one hundred dollars of property valuation.

Article 2815h, § 7. . It appears from the report of the Davis case that the City of Fort Worth had assumed control of its public free schools and sought to levy a tax under

Article 3785 R.S. 1879, which provided that the City, upon proper vote of its taxpayers, could levy a tax on all property within the city to supplement the funds received from the State available fund for school purposes. The Court held that the tax levy provided for in

Article 3785 was not supported by

Article 7 of the Constitution, although it could be supported, insofar as the City of Fort Worth was concerned, by

Article 11, § 10 of the Constitution relating to “Municipal Corporations.” The tax however was held invalid because a properly worded proposition had not been submitted to a vote of the taxpayers. In its discussion of the asserted power to levy a local tax to carry out the directions of

Article 7, § 1 of the Constitution relating to education, the Court considered implied limitations upon the taxing power. The Court said: “[T]he

Article on education and public schools, * . * * directs (that) ‘not more than one-fourth of the general revenue of the State, and a poll tax of one dollar’ be set aside annually for the benefit of the public free schools.

It (the Article) defines the permanent available school funds thus: ‘The principal of all bonds and other funds, and the principal arising from the sale of the lands hereinbefore set apart to said school fund, shall be the permanent school fund; and all the interest derivable therefrom, and the tames herein authorized, and levied, shall be the available school fund, which shall be applied annually to the support of the public free schools’. Clearly the expression ‘taxes herein authorized’ negatives all other taxation for school purposes than that expressly authorized in the constitution. So the 9th

section of the

article on taxation carefully prescribes the limit to state, county and city taxation, except for the payment of debts then already incurred, ‘and except as in this constitution as otherwise provided.’ These repeated and guarded constitutional limitations of the taxing power are a prominent feature of that instrument and, are inconsistent with the existence of a legislative power to authorize additional taxation by school districts, unless some affirmative grant of that power be found in the constitution itself.” Mention was made of

Article 9,

Section 7 of the Constitution of 1869, which read as follows: “The Legislature shall, if necessary, in addition to the income derived from the public school fund, and from the taxes for school purposes provided for in the foregoing

section (relating to the permanent school fund) provide for the raising of such amount by taxation, in the several school districts in the state, as will be necessary to provide the necessary school houses in such districts, and insure the education of all the scholastic inhabitants of the several districts.” It was pointed out that the framers of the Constitution of 1876 were familiar-with the provision of the former Constitution which authorized local taxation for school purposes and that this constitutional provision was omitted from the 1876 Constitution.

The reasoning of the Davis opinion as to a constitutional limitation of the taxing power is predicated upon the circumstance that the framers of the Constitution of 1876 envisioned that the public free .schools of the state would be financed 'by state funds and not in part by local taxation as was done by the Constitution of 1869. The basis of the Davis opinion is the wording of

Article 7 of the 1876 Constitution as it existed b.efore the amendment of 1883,' Gammel’s Laws of Texas 809, and the key words therein relied upon were “taxes herein authorized” which were contained in

Article 7, § 5. It was held that because of the provisions for the support of schools contained in the Constitution, it was implied that there could be no taxes other than those “herein authorized,” that is, provided for in

Article 7. It is contended that although Fort Worth v. Davis did not involve a junior college district, the case is nevertheless authority for the proposition that there is an implied constitutional prohibition against legislative authorization of a local ad valorem tax for the maintenance of a junior college. It is then asserted that while the 1883 amendment authorized the legislature to enable an elementary or high school district to levy a maintenance tax, it was wholly ineffective to authorize a similar tax for junior college districts.

At the time of the Constitutional Convention of 1875, junior colleges, as we know them today, were apparently unknown to the members of the convention. One whose reading of the journals of the 1875 Convention is interrupted by the parading of a modern high school band is forceably impressed with a change in the scope of public education and perhaps differences in educational concepts. The framers of the Constitution were talking of schools which would remain in session but four .or five months of the year.

The state had just emerged from a period of gross governmental mismanagement and the excessiveness of local school tax levies under the Constitution of 1869 was a matter of bitter complaint. Mr. Richard Sansom, a delegate from Williamson County to the Convention, stated that “he desired simply to say that the people wanted no taxes levied for the maintenance of public schools. He said he knew not one taxpayer in his entire county when he canvassed the county who expressed a wish to continue the public schools by taxation. He did not believe the people of Texas wanted to go one step in that direction.

It was this school tax that the people had complained so much about. It was the main tax, the main expense, and burden, that induced them to call this Convention.” McKay, Debates in the Texas Constitutional Convention of 1875, p. 219. Yarious opinions were expressed, some were strongly opposed to “any system of public free schools supported by taxation.” McKay p. 225. Others would provide public schools for indigents only. McKay p. 356. The proponents for free public schools were, however, both vigorous and eloquent. McKay, p. 220 et seq., and the principle of public education was written into the Constitution.

A proposed amendment which would permit local taxation was proposed by delegate Charles DeMorse. McKay p. 214. This proposal was, however, rejected. Such decision was subsequently reversed by the 1883 amendment to the educational

section of the Constitution. Despite these expressions on the part of certain delegates, it can hardly be supposed that the prophetic vision of the convention was so circumscribed that its educational conception embraced only a static non-changing educational system based upon four-month schools of an elementary type. While the delegates may not have envisioned junior colleges, it does not follow that they contemplated neither development nor improvement in the Texas system of public education. .

The authorities hereafter discussed also have some bearing upon the appellees’ argument that there is no implied limitation upon the plenary power of the legislature over public education insofar as the authorizing of a local maintenance tax for junior colleges is concerned. See, Muíame v.

Marrs, 120 Tex. 383, 40 S.W. 2d 31. . “A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.” Constitution,

Article 7, § 1. . “The Legislature shall not have the right to levy taxes or impose burdens upon the people, except to raise revenue sufficient for the economical administration of the government, in which may be included the following purposes : * ⅜ * “The support of public schools, in which shall be included colleges and universities established by the State; and the maintenance and support of the Agricultural and Mechanical College of Texas. '* * * » Constitution,

Article 3, § 48. . As above pointed out the attack made upon the taxing power of the Southwest Texas Joint County Junior College District in Williams v. White, Tex.Civ.App., 223 S.W.2d 278, wr. ref., was based upon the contention that the District had no legal existence. It was not asserted in the appellate court that a legally created junior college district was without power to levy a maintenance tax. .The operation of judicial precedent is such that the provisions of a constitution do not always control its meaning. In Morrow v.

Corbin, 122 Tex. 553, 62 S.W. 2d 641, the constitutionality of the certified question practice involving the Courts of Civil Appeals and the Supreme Court was upheld because it had been exercised for some forty years. This, although the constitutional basis for the practice could not be pointed out and was-characterized by the Court as being “elusive”. (62 S.W.2d 651) . While appellants have not attacked the legal existence of the San Jacinto Junior College District, it should perhaps be pointed out in connection with the opinion in Stuart v.

School District, that the Texas Legislature insofar as it is legally possible to do so, has repeatedly validated the legal existence of the district, its bonds and its right to levy taxes. See, sections following Articles 2815g and 2815h of Yernon’s Ann.Tex.Stats. . It is not suggested that the Legislature “usurped” power in the enactment of Art. 2815h. It acted only after obtaining the advice of the Attorney General.