I dissent from the opinion in this case.
The amendment or section 9, article 10, of the Constitution was not a grant of power to the excise board to make tax levies. It, like its predecessor, the original section, was a limitation on rates of levy, but it included a Provision authorizing the excise board to do that which the people had done in the original section, that is, to apportion the maximum rate of taxation.
Under the provisions of the amendment, the excise board has authority to apportion the maximum 15 mills, but it has no authority to make tax levies. Tax levies are made under the provisions of section 20, article 10, of the Constitution, which provides:
"The Legislature shall not impose taxes for the purpose of any county, city, town, or other municipal corporation, but may, by general laws, confer on the proper authorities thereof, respectively, the Power to assess and collect such taxes." *Page 624
The distinction which must be kept in mind is that between apportioning the maximum of 15 mills, which is one thing, and the making of tax levies, which is another. There is no authority granted by the amendment of section 9, article 10, to the excise board to make tax levies. When tax levies to be made, they must be made tinder the legislative limitations in existence.
Heretofore we have had a constitutional limitation on the rate of taxes and the maximum amount has been apportioned by the provisions of the Constitution. When an excise board proceeds under the authority conferred upon it by the provisions of the amendment of section 9, article 10, and apportions the Maximum rate of taxation, it has the effect of creating a constitutional limitation, which constitutional limitation, like the former constitutional limitation, is subject to legislation limiting the rate of taxation.
In my opinion, though the excise board had apportioned the maximum rate of taxation, a thing which it did not do in this case as admitted in oral argument, that apportionment would have operated only as a constitutional limitation on the rates of levy, and the amount so apportioned would be subject to the legislative limitations in existence at that time. In other words, though the excise board should apportion the 15 mills maximum rate of ad valorem taxation in a way that would give to a political subdivision greater portion than the rate limited by legislative enactments, the legislative enactments would operate as legislative limitations and would prevent such a levy as was made in this case.
In my opinion, when the excise board ham met and apportioned the maximum of 15 mills for ad valorem taxation purposes, the effect is no more than the effect when the the people in the Constitution made the apportionment, and the legislative limitations are as much application to the apportionment made by the excise board as they were, to the apportionment made by the people in the Constitution by the provisions of the former section. If the Legislature could limit, the maximum rates of taxation in the Constitution, so could the Legislature limit the maximum rates of taxation provided in the apportionment made by the excise board, and since the Legislature could limit those rates, its, former limitations thereof are not in conflict with the provisions of the Constitution, as amended, and prevail.