The State of Florida ex rel., The Board of Public Instruction of Volusia County, Appellant, vs. The County Commissioners of Volusia County, Applllees, 28 Fla. 793

Raney, C.

J.: The petition for the writ of mandamus states that the Board of Public Instruction of Volusia county met on the last Monday in June, the 29th of that month, of the present year for the purpose of preparing an itemized statement showing the amount of money requisite for the maintenance of the necessary common schools of the county for the ensuing scholastic year, and for the purpose of making a levy therefor, and then, at the request of the Board of County Commissioners, and for the purpose of conferring with the latter board at its next meetingto beheld on the 7th day of July, adjourned to that day, on which day the former Board met and prepared an estimate and levy of the amount so required for the maintenance of the schools, and presented such estimates and levy to the commissioners, and requested them to levy and assess a tax of five mills upon the dollar of„the taxable property of the county for the purpose aforesaid, and to report such estimate and levy to the assessor of taxes.' The transcript of the record of the proceedings of the School Board on the day last named, which transcript is made a part of the petition, shows the following action: “On motion the following estimate for the current year’s expenses was made: For salary of teachers........................$17,800 For furniture, repairs and new buildings...... 2,500 For School Board and mileage................ 250 For Superintendent.......................... 1,000 For school books and freight................. 1,800 For miscellaneous expenses................... 250 Total......................................$23,650 And in accordance with the law. the above estimate was presented to the Board of County Commissioners with the request that they levy a tax of five mills on the dollar for school purposes.” The complaint of the School Board is, that the commissioners refused to make a levy of five mills, or to report to the Assessor of Taxes “the amount and rate of the estimate and levy” so made by the former board, but made a levy of three and three-quarter mills, which they instructed the assessor to enter upon the assessment, which instruction the assessor has obeyed.

The prayer of the petition is, in effect, for a mandamus commanding the commissioners to do what it is complained they have not done. The petition seems to ha,ve been treated as an alternative writ, which is the declaration in such cuses, and was answered by the commissioners, who state that their action was taken on the 4th day of August of this year, and pursuant to the provisions of

an act approved June 9th, 1891, (Chapter 4012 of the statutes,) given below. The School Board’s response to this is, practically, though not in form, a demurrer, and has been so treated by the Circuit Judge. The 14th paragraph of sec.. 20 of the school law, approved June 8th, 1889,

Chapter 3872 of the statutes, provides that the Board of Public Instruction in each county shall on or before the last Monday in June of each year prepare an itemized estimate showing the amount of money required for the maintenance of the necessary common schools of their county for the next ensuing-scholastic year, stating the amount in mills on the dollar of the taxable property of the county, which shall not be less than three nor more than five mills, and fufnish a copy of the statement to the Assessor of Taxes of tlie county, and file a copy in the office of the Board of Public Instruction, and the assessor shall assess the amount so stated, and the collector shall • collect the amount assessed and pay over the same monthly to the County Treasurer, to be used for the sole benefit of the public schools. “An act to provide for the levy of taxes for the years 1891 and 1892,” approved June 9th, 1891, (Chapter 4012 of the statutes,) and by its terms taking effect upon such approval, ordains that the Board of County Commissioners of every county at a meeting for correcting and reviewing the county assessment shall immediately thereafter determine the amount of money to be raised by tax for county purposes, including current expenses, interest on the bonded debts, bridges and county buildings, and to meet these expenses they are authorized to levy a tax not exceeding five mills on the dollar on real and personal property of the county, and that every such determination and levy so made shall be entered at large upon the record of the board; and it is also provided that the commissioners “ shall levy a tax not to exceed five mills, nor less than three mills, on the dollar on real and personal property of the county for county school purposes, such tax to be estimated by the County School Board and submitted to the Board of County Commissioners for their approval or disapproval, and the County Commissioners shall have the power to increase or lower the estimate so made within the above limits.” The 35th

section of “an act for the assessment and collection of revenue,” approved June 10th, 1891, (Chapter 4010 of the statutes, which act did not go into effect ‘ ‘until sixty days from the final adjournment of the session of the Legislature,” (sec. 18,

Article III of the Constitution,) which adjournment took place on the fifth day of the same month, provides that the County Commissioners shall determine the amount to be raised for all county purposes, except for school purposes, and shall enter upon their minutes the rate to be levied for each fund respectively, and shall ascertain the aggregate rate necessary to cover all such taxes, including such rate as may have been levied by the County Board of Education for school purposes, and report the same to the assessor who shall carry out the full amount of taxes for all county purposes under one heading in the assessment roll to be provided for that purpose, and the County Commissioners shall notify the clerk and auditor of the county, also the treasurer thereof, of the amount to be apportioned to the different accounts out of the total taxes levied for all purposes.

Respondents rely, as indicated above, on the act of June 9th of the present year, (Chapter 4012,) and relators contend that this statute was modified by the 35th

section of the general revenue law, (Chapter 4010,) approved June 10th, which they say was in effect on the fourth day of August when the commissioners took the action complained of. Respondents further urge that as the Legislature did not adjourn until the fifth day of June, the last mentioned statute did not go into effect until August 5th, or the day after the levy by the commissioners. To ascertain the real intention and meaning of the Legislature of 1889, we must consider any legislation there may be, of that year, bearing on the same subject that the fourteenth paragraxoh. of the 20th

section of the school law of that year relates to.

In “an act to provide for the levy of taxes for the years 1889 and 1890,” approved June 3rd, 1889, (Chapter 3849,) the County Commissioners are given powers as to other taxes than those for school purposes, similar to those given by the tax levy act of 1891, (Chapter 4012, supra,) and as to school taxes it was enacted that the County Commissioners should “levy a tax not to exceed five mills, nor less than three mills, on the dollar on the real and personal property of the county for county school purposes, such tax to be estimated by the County School Board and submitted to the Board of County Commissioners for their approval or disapproval; and the County Commissioners shall have power to increase or lower the estimate so made within the above limits.” The above provisions as to school taxes in the two acts of 1889 are in pari materia, and they are to be construed together, the same as if they were in one statute.

See authorities, infra. Considering them together, there is not only no irreconcilability between them, but no obscurity as to their meaning, or as to the purpose of the law-makers.

The meaning and purpose were that the School Board should, as directed by the school act, on or before the last Monday in June prepare the itemized statement of the amount required for the maintenance of schools, stating also the amount in mills on the dollar of the taxable property, but this estimate was, by the tax levy act of the same year, rendered subject to the approval or disapproval of the commissioners, and to be increased or lowered by them.

The duty devolved by the latter act upon the School Board, of submitting the estimate to the County Commissioners, was to be performed, as was the revising duty of the commissioners under the same act, before the School Board could or should perform the other duties devolved upon it by the subsequent provisions of the given fourteenth paragraph of

section 20 of the school law. Such being the effect of the law and the purpose of the legislature, as shown by the legislation of 1889, the disposition of the case presented by this record. is not difficult. Assuming that the thirty-fifth

section of the general revenue law of 1891, (Chapter 4010, supra), was in force on the fourth day of August of this year, there is in it nothing inconsistent with the power of the County Commissioners to reduce the rate of taxation on taxable property estimated and submitted, under the tax levy act of 1891, (Chapter' 4012, supra). Even if it be that the effect of the thirty-fifth

section in excepting school taxes from the-direction of the Commissioners to “determine the amount to be raised for all county purposes,” is to-limit the revisory powers which the Commissioners would have if the school law of 1889 and the fax levy act of 1891 stood alone, by preventing any interference with the determination or discretion of the school board as to the amount of money requisite for the necessary common schools, it has not the effect to take from the Commissioners the power to increase or lower the rate of taxation.

This is clearly the effect of the latter act notwithstanding anything in the “thirty - fifth section.” The tax levy act makes it the duty of the school board to submit “the tax estimated by” it to the Commissioners for their approval or disapproval, and the County Commissioners have power to increase or lower the estimate so made, within specified limits.

Whether, in view of the exception, by the thirty-fifth section, of school taxes from the duty of the "County Commissioners as to determining the amount to be raised for county purposes, the submission for approval or disapproval to be made by the School Board of “the tax estimated” by them, and the power of the Commissioners to increase or lower the estimate so made, include the “amount of money required for the maintenance of the common schools,” we do not feel called upon to decide, but we are entirely satisfied that they do include the rate of taxation which the School Board are required by the act of 1889 to state.

When this thirty-fifth

section says that the County Commissioners shall determine the amount to be raised for all county purposes, it means it shall do so in accordance with the provisions of the tax levy act of 1891, or, in other words, shall perform the duty as to such taxes imposed by that act, and in 'excepting school taxes from such duty of determining the amount to be raised for county purposes, its purpose was not more than to avoid any conflict with the provisions of the 14th paragraph of the 20th

section of the school law, as to the duties and powers of the School Board in the matter of “preparing an itemized estimate showing the amount of money required for the maintenance of the necessary common schools for the next ensuing scholastic year,” and when it says that the Commissioners shall ascertain the “aggregate rate necessary to cover all such taxes, including such rate as may have been levied by the County Board of Education for school purposes,” the words “including such rate as may have been levied by the County Board of Education for school purposes,” are not used as granting power to the County School Board, but as words of reference or of description of the tax, and they refer at least to the rate fixed for school purposes in accordance with law, that is, by the School Board under the supervisory power of the County Commissioners.

In determining how the rate of taxation for county school purposes is to be fixed, we have no more right to ignore the provisions of the tax levy act of 1891 requiring that the County Commissioners shall “levy” the tax, and that it shall be a tax previously estimated by the School Board, and submitted to them by it for their approval or disapproval, with power in the Commissioners to increase or lower the tax or estimate so made and submitted, than we have to close our eyes to the provision of the school law as to the School Board preparing the itemized estimate of the amount required with the statement of the amount in mills.

If it be that the 35th

section of the general revenue law was not in force, and for that or other reason is not applicable to taxes of the present year, then the effect of the tax levy act of this year upon the provisions of the school law discussed above is the same, at least in so far as the rate of taxation is concerned, as was the tax levy act of 1889. Of course if the 35th

section is not apxfiicable to these proceedings, there was no law making it the duty of the County Commissioners to make the “report” to the Assessor of Taxes, provided by such section, or interfering with the provision of the fourteenth paragrapy of the 20th

section of the school law, (as modified by the tax' levy act of 1891,) as to the School Board furnishing a copy of the statement to the Assessor. Assuming that the power of the County Commissioners extends only to altering the rate of taxation, the petition does not show that they have acted either illegally or improperly in lowering the estimate, or even -that the rate of taxation fixed by them will not produce an amount of money equal to the aggregate of the itemized statement. No prima facie case is made by the petition, no omission or violation of duty. High on Ex. Legal Rem., secs. 449, 450.

The “meeting” of the County Commissioners “for correcting and reviewing the county assessment,” mentioned in the tax levy act of 1889, as wéll as that of, 1891, (Chapters 3849 and 4012, supra.) is the meeting provided for by the general revenue law, and the day fixed for its commencement by such law as it stood in either 1889, or in 1891, -was not earlier than the first Monday in July, (see Chapters 3681, 3839 and 4010 of the statutes,) even if it can be said that the last of these chapters cpuld have had any effect at that time.

Of course any estimate of the rate of taxation made by the School Board on the last Monday in Juné must, in view of the powers of the Commissioners as to altéring valuations of property at their subsequent meeting, necessarily be of doubtful accuracy, even assuming that the Assessor was so well up with his assessments or books as to inform the School Board of the aggregate of his valuation of the taxable property in the county.

The fact that the general revenue law was approved by the Governor one day after the approval of the tax levy act, does not make the former statute work a repeal of any part of the latter, or prevent their being construed as one act. The former passed the Senate June 4th, and the House of Representatives the next day, and the latter passed both houses on the latter day. They are, by their nature, in pari materia, and should be so construed. Florida, A. & G. C. R. R. Co. v. Pensacola & Georgia R. R. Co., 10 Fla., 145; State ex rel. Arpen vs. Prown, 19 Fla., 563, 593-5; State ex rel. Gonzalez vs.

Palmes, 23 Fla., 620; 3 South. Rep., 171; Ex parte O’Donovan, 24 Fla., 281, 4 South. Rep., 789; Forbes vs. Board of Health of Escambia County, 27 Fla., 189; 9 South. Rep., 446; Attorney-General vs. Railroad Co’s., 35 Wis., 425. The judgment, is affirmed.