The statute under consideration requires a levy of three mills whether there be any school children in the unorganized district or not. The organized districts pay the county tax (Sec. 61-806 I. C. A.) and their own levies (Sections 32-702-7, I. C. A.) while the unorganized districts, if appellant be correct that only if school children reside therein may such tax be levied, pay only the county levy. Thus the unorganized districts pay only one levy, the organized districts two. It is urged however that if the tax be levied irrespective of whether there are any school children residing therein it amounts to a county tax being levied on only a part of the county for the benefit of another part of the county, relying on Idaho Countyv. Fenn Highway District, 43 Idaho 233, 253 P. 377.
If the territory embraced in the unorganized district, to help bear its proportionate share of the cost of maintaining the schools of the entire county, should be attached to and made a part of one or more organized districts the result would be similar to that existing herein, except that then only the organized district to which such territory was attached would benefit, whereas under the present law, if valid, all districts in the county benefit.
The Constitution requires that a "general, uniform and thorough system of public, free common schools" be maintained. (Art. 9, Sec. 1) Absent the present statute the *Page 55 territory in the unorganized districts obviously does not bear its proportionate burden of the county school system by reason of the levy (not county) in the organized districts and none in the unorganized districts. In an attempt to bring about a fair adjustment this statute does not result in double taxation nor impose a tax on part of the county for the benefit of another part but equalizes the burden by imposing part of the burden of those parts of the county having school children on the part of the county not having school children. Such result was in substance approved in Fenton v. Board of County Commissioners,20 Idaho 392, 402, 119 P. 41:
"Thus we find that since 1866 down to the present time the words 'establish and maintain' have been an integral part of our common school system. From our statutes and constitution, there can be no doubt as to the purpose of the people regarding the common schools. The great object sought was the creation of a public school system that would be efficient and enduring; and while that duty was imposed on the legislature by the constitution, a large discretion was given to it in which to 'establish and maintain a general, uniform, and thorough system of public, free common schools,' and the history of the public schools of this state shows that the legislature has efficiently and wisely carried out said provision of the constitution in the enactment of general laws for that purpose. Schools cannot be established or maintained without revenue, and there is no inhibition in the constitution on the legislature from delegating the authority to raise revenue for that purpose to proper local officers. The legislative branch of the government has the exclusive power of taxation, except as limited by the constitution, and has authority under the constitution to delegate that power within the provisions of the constitution to municipalities or their officers. (See 2 Dillon, Municipal Corporations, 3rd ed., sec. 740.)
"As stated in Robinson v. Schenck, 102 Ind. 307, 1 N.E. 698:
" 'It cannot be doubted that the legislature may delegate to local officers the power to make rules for the government of local schools and to levy taxes for their support; *Page 56 and, if this be true, it necessarily results that it is a valid exercise of power to enact a statute for that purpose. If a valid statute is enacted, committing to the local officers the power to govern schools and raise revenue for their maintenance, the legislature does provide for a system of common schools 'by law' and this is what the constitution requires.'
"If, under said provisions of the constitution, the legislature has by general law made provisions for the government and support of the common schools by providing suitable machinery and committing the details of its operation to local officers, they then have complied with the provisions of said sec. 1, of art. 9 of the constitution. The legislature might delegate the exclusive authority to the board of trustees of each district to levy the taxes for school purposes within its district, but the legislature has not done so. However, each district may levy a special tax, and the board of commissioners is authorized to levy not less than five mills and not more than ten mills to be apportioned among the districts as provided by law.
"It is well known that there were school districts in the state containing a small amount of taxable property, and that it would be impossible without classification to raise a sufficient amount of money by taxation on such property to maintain the school in such district for the time required by law, and the method adopted by the legislature in requiring the several boards of county commissioners to levy a tax of not less than five mills nor more than ten mills for public school purposes and divide it among the districts, as provided by law, would assist the weaker districts, and thus enable them to give the children in such districts the required amount of schooling per year.
. . . . . . . . . .
"The principal difficulty seems to be that a five mill levy will raise more money than many of the districts will need. If that be true, it is unfortunate, but it is not for this court to attempt to deprive the legislature of any power or authority given it by the people.
. . . . . . . . . . *Page 57
"Counsel for appellant cite certain decisions to the effect that taxes for municipal purposes should be left to the control of municipal corporations. The rule there laid down is no doubt correct under the constitutions of the states from whence such decisions come, and would be correct under the provisions of sec. 6 of art. 7 of the constitution above quoted, which prohibits the legislature from imposing taxes for the purpose of any county, city, town or other municipal corporation. However, under our constitution and law, a school district is not a municipal corporation, and the constitution makes it the duty of the legislature to establish and maintain free public schools, and in doing so it may require the boards of county commissioners of the several counties to levy and collect a tax therefor."
And in Independent School Districts, etc. v. Common SchoolDistricts, 56 Idaho 426, 432, 55 P.2d 144:
"It is true that the school district is a mere agency of the state. (Common School Dist. No. 61 v. Twin Falls Bank T. Co.,50 Idaho 711, 716, 4 P.2d 342.) As such however, it is charged with the sovereign duty of maintaining the schools within its particular territory of the state and of receiving funds and property and managing, controlling and expanding the same in the interest of public education. In this respect and for this purpose the school district is the agent of the state in its particular territory. It would, therefore, amount to neglect of its duty and an unfaithful stewardship for it to fail or neglect to claim and demand the public funds and property belonging to its territory, and meant and intended for application in furthering the educational advantages of the children of that particular community of the state. In this respect and to this end, the officers of the school district are charged with the sovereign duty of furthering and promoting the cause of general education. (Const., art. 9, sec. 1; Fentonv. Board of County Commrs., 20 Idaho 392, 402, 119 P. 41;Howard v. Independent School Dist., 17 Idaho 537, 540; 106 P. 692.)
"Since every school district within the state is a public corporation and an arm of the state, charged with these duties, it seems clear that one district may maintain an *Page 58 action against another, where by either mistake, fraud or inefficiency of public servants, the one district has received and expended for educational purposes, in its territory, more than its share of the public fund; and the other district by reason thereof has received less than its share; and we have not been able to discover any valid reason why such an action may not be maintained. Indeed, if a district cannot prosecute such an action, then clearly there is no way in which the wrong or misapplication of funds may be corrected or redressed. Nor is it a sufficient answer to say that, since the one district has received more money than it was entitled to, and has in fact expended it for school purposes within its district during the year for which collected and apportioned, it cannot be required to withhold from a future apportionment or future taxes enough money to reimburse the district which suffered by loss of the portion to which it was legally entitled."
The county school fund (Sec. 61-806 I. C. A.) is apportioned to the different districts. (Sec. 32-806 I. C. A. as amended, 1937 S. L. Ch. 174, p. 285.) Thus the act under consideration is merely an added method of equalizing the burden of schools on all taxable property. Myers v. Board of Education, (Ohio)192 N.E. 393.
Idaho County v. Fenn Highway District, supra, is distinguishable because there the county was trying to force the highway district, a separate unit and a municipal corporation, not an arm of the county, to levy taxes.
Thus instead of lack of uniformity, the opposite results. Since school districts are not municipal corporations Article 7, Section 6 does not apply. Fenton v. Board of County Commrs.,supra, at 392, 108 A.L.R. 579n. In re Rogers, Randall Pitzen, 56 Idaho 521, 57 P.2d 342; Barton v. Alexander,27 Idaho 286, 148 P. 471; Idaho Gold Dredging Co. v. Balderston,58 Idaho 692, 721, 78 P.2d 105.
The requirement that the county officers take certain preliminary steps before the imposition of the levy is directory and not mandatory (Northern Pacific Railway Co. v.Shoshone County, 63 Idaho 37, 116 P.2d 221).
The fact that the county commissioners are also trustees *Page 59 of unorganized districts is a mere incident. There is no prohibition against county commissioners additionally being school trustees.
The judgment should be affirmed.
I am authorized to say that MORGAN, J., concurs in the above views.