As I understand the history of the litigation in this court directly concerning the Tax Limitation Amendment, we have decided the following propositions:
In the case of Finlayson v. City of Shinnston et al., 113 W. Va. 434,168 S.E. 479, we held that the sinking fund and interest for bonded indebtedness, both future and past, could not be laid regardless of the limitations intended by the constitutional amendment. It is worthy of note in connection *Page 529 with the decision of that case, by a unanimous court, that at the time the opinion was handed down no enabling act had been passed by the legislature and that, therefore, the only thing involved in the case was the question whether debt service could be levied for regardless of all limitations, both constitutional and legislative. The question was not one of exceeding limitations, but one of disregarding them in toto.
In Herold et al. v. Townsend, Tax Commissioner, 113 W. Va. 319,169 S.E. 74, we held that the procedure and election for the adoption of the tax amendment contained no such irregularities as would vitiate it. In doing this, the court took the view that the theory of liberal construction was more consonant with our institutions in such matters than was the rule of strict construction.
Then came the cases of Bee v. Huntington and Eakle v. BraxtonCounty Court, 114 W. Va. 40, 171 S.E. 539, which involved an act of the legislature placing it within the power of the local levying units to exhaust the entire legislative limitations of the enabling act for their current expenses, and thereafter to super-impose the total of their debt service requirements in the field of excess levies. In these cases, we held that the plan set up in the act was in conflict with the purpose of the tax amendment to limit levies for current expenses, and was therefore invalid. The principle laid down in this case that levies for debt service are to be laid before levies for current expenses is, in my opinion, to be restricted in its application to the levies for each individual unit. It is not to be applied to the sum total of overlapping levies for all units, for in that case, the debt service levies of one collide with the debt service and current expense levies of another.
The case now before us involves the sheer question of whether the State of West Virginia by act of the legislature may undertake for a biennium, to pay the sinking fund and interest of local debts. In my opinion, to do this violates the constitution, which states in express terms that the state shall not assume nor become responsible for the debts of counties, cities, townships, corporations and persons. (Const., Art. X, sec. 6.) I cannot subscribe to the thought that payment of debt is not becoming responsible for debt pro tanto the payment. Neither can I subscribe to the theory that such assumption *Page 530 is indispensable in order to render the tax amendment workable as the last expression of the will of the people contained in the constitution, which must be given effect even though some previously written portion of that instrument must be disregarded in order to do so.
Conceding that the tax amendment must be given effect notwithstanding previously written parts of the constitution which might, to a degree or perhaps wholly, prohibit some of the things necessary to be done to give that amendment workable application, we are still confronted by the fact that if, on any possible theory, the tax amendment can be made effective and workable without violating any of the previously written parts of the constitution, this course should be taken as a solution rather than to disregard any part of the fundamental law. In other words, the rule of construction ex necessitate cannot be invoked in the face of a practical solution of the difficulty, consistent with the true purpose of the tax amendment and also consistent with other portions of the constitution. This statement is made with the fact in mind that the tax amendment must be given effect according to its true purpose. Being the last expression of the people's will, contained in the constitution, its true purpose cannot give way to other portions of that instrument written before the tax amendment.
It, therefore, seems to me that refusing to adopt the exnecessitate rule of construction requires a statement of some practical solution of the difficulty to justify it. In other words, if there is no practical solution of the difficulty other than the overriding in whole or in part of a previously written part of the constitution, then the rule requires that that be done as a matter of necessity. Refusing to adopt the rule of necessity can be justified only in the event that some other solution seems available. Therefore, I am impelled to discuss what I regard as some sound legal principles that will contribute to a substantial solution of the difficulty of applying the tax amendment. These principles, in my opinion, are legally sound and must be encountered and met at some point in any conceivable solution.
What seems to me to be an error exists in both of the acts of the legislature that have been before us. I refer to the *Page 531 fact that in both acts a single allotment or allocation of the power to lay property levies has been made to the county courts and the road districts as one single unit. They should be separately treated. Otherwise, out of the levy allotted to the county courts by the legislative enabling act, the county court is required to provide for the payment of sinking fund and interest on district road bonds. Since, under the Bee case, levies for sinking fund and interest (debt service) are to be laid before levies for current expenses, uniting counties and road districts as a single unit means that debt service for district roads must be provided out of the county levy before levies for current expenses of the county can be considered. Therefore, in laying the levy, the highest levy required by any magisterial district in the county for debt service on district roads must be subtracted from the county levy, and for its current expenses the county can lay only what remains. If it has a debt service requirement of its own, this, too, must be provided for before it can lay its levies for current expense. Should the debt service requirements of the county conflict with those of the road district, there is no rule to settle the conflict. Hence, if a single road district within the countyshould require the entire county levy for its debt service purposes, the county, because it must, for county purposes, lay a uniform levy throughout the county which cannot be greater in one magisterial district than in another, is thereby deprived of the right to lay any levy throughout the entire county for county current expenses, even if the other magisterial districts of the county have no road bonded indebtedness to provide for. Carrying the illustration further, if, in a county having seven road districts, magisterial district "A" requires ninety per cent of the total county levy in order to provide debt service for its district road bonds, then in magisterial district "A", the remaining ten per cent of the county levy is all that the county can lay for its current county expenses. Ten per cent being all that the county can lay in magisterial district "A" for current expenses, it follows that in order to make the county levy uniform throughout the county, ten per cent is all that may be laid for county current expenses in magisterial districts "B", "C", "D", "E", "F" and and "G", even though those magisterial districts require no *Page 532 levy for debt service. It follows that the county has lost ninety per cent of its levying power in magisterial districts "B", "C", "D", "E", "F" and "G" because of the bonded indebtedness of magisterial district "A". This great loss of levying power is the thing that has crippled the counties under the plan set up in the legislation that was before us in theBee case and does the same thing in the legislation before us in this case. The remedy, it seems to me, is simple and is based upon sound legal principles.
The levies for sinking fund and interest of district road bonds are not levies for county purposes. They have never been. It is true that the county court acts as the fiscal governmental agent for magisterial districts when laying their levies for district road debt purposes and in collecting and disbursing the money derived therefrom. In this respect, however, the counties, as to the districts, are the mere machinery for carrying out what has been done in the magisterial districts by a vote of the people therein when imposing an obligation upon themselves. See Code, 13-1-1,et seq. The obligation is co-extensive with the district, as are the levies to be laid to meet it. This is illustrated by the holding of this court in the case of State ex rel. White,Tax Commissioner v. County Court, 63 W. Va. 230, 59 S.E. 884, point one of the syllabi of which case reads as follows:
"The clause in section 29 of chapter 39 of the Code, as amended by chapter 63 of the Acts of the Legislature of 1907, saying, 'The said county court shall thereupon levy so many cents on every hundred dollars of the valuation of the property taxable in the county according to the last assessment thereof, as will cover the estimated amount necessary to be raised for county purposes and as aforesaid approved during the fiscal year; but such levy shall in no case exceed thirty-five cents on the one hundred dollars valuation of property,' does not limit the powers of the county courts respecting the amounts to be raised by taxation for district road purposes."
I realize that it has been said that magisterial districts, as such, have no debt creating powers. But it cannot be said that such districts, by popular vote, cannot incur the obligation *Page 533 to submit the property of the district to a tax to meet a debt for money spent in the district for district purposes. Mandamus would lie to compel a district debt levy for such purpose, not a county levy. The county court may be bound by the debt, but the district is bound to submit to the levies for its payment.
It follows that the road district, for the purposes of the tax amendment, should be treated as a separate levying unit for the purpose of providing its debt service and should be given separate and distinct allocations in any legislative enactment that may be set up under the tax amendment. Then the district road debt problem is separated from the county problem and stands where it logically belongs, to be solved within the district that voted the bonds and without interference with the right of any other levying unit to lay levies. If the right to lay a separate levy under its own limitation prescribed by the enabling act, is given to the county court for the district for road purposes (not confusing it with the district for school purposes, which must be preserved for debt service as a levying unit unto itself), then when a given magisterial district must exceed the legislative limitation placed upon it in order to provide debt service for its district road bonds, the amount of the excess levy does not absorb any of the levying power of any other taxing unit. The excess levy is laid because it is necessary to do so in order to prevent the impairment of the obligation of a contract. Being outside the limitation, and legitimately so, prescribed for the levying unit, the excess absorbs no part of the constitutional limitation that has been assigned by the legislature to other levying units to lay for other governmental purposes co-extensive with their respective territorial limits. Providing for the debt service of one taxing unit cannot be permitted to interfere with the governmental functions of a separate and distinct taxing unit.
The last statement involves another principle that seems to me to be inherent in the tax amendment itself and inevitable to its correct understanding and proper application. That principle is that the constitutional limitations are limitations upon the legislature only, and restrict only the right of the legislature to confer levying power and to authorize levies to *Page 534 be laid upon property by the various taxing units throughout the state. It did not require a constitutional amendment to give the legislature power to limit local levying units. It had that power. It did require a constitutional amendment to limit the legislature itself. The aggregate of all of the taxes to be assessed in any one year means the aggregate of all the taxes authorized to be assessed in any one year, and the term "all the taxes" necessarily gives way when the impairment of the obligation of a contract steps in and requires levies to be laid for debt service in excess of those authorized. In allocating the levies to the taxing units in an enabling act, the legislature is restricted by the constitutional amendment and can allocate only to the extent of the limitations therein prescribed. These levies are the authorized levies. The excess levies may be authorized in the sense that the method of arriving at them is prescribed, but this is not to authorizethem to be laid. Contractual obligation requires and alone justifies that to be done. Levies not expressly authorized by statutory law may, however, be laid when pre-existing contractual indebtedness requires that this be done. When the legislature has authorized the taxing unit, through the medium of its enabling act, to lay levies within the constitutional limitations, then those levying bodies are limited by the enabling act. They are authorized to lay the levies prescribed by it and no more. Consequently, it is the legislative limitation that circumscribes the levying unit. Its power is limited by the act of the legislature and not directly by the constitution. The unit cannot, in laying its levy, reach the constitutional figure without first exceeding the limitation placed upon it by the legislature. The only purpose for which it may exceed the limitation placed upon it by the legislature is to take care of its pre-existing debt. When, for that purpose, it must exceed its legislative limitation, it then is in the field of excess levies in so far as its levy goes above the legislative limitation placed upon it. For the excess it is not encroaching upon the levying power of any other taxing unit that has been conferred upon that unit by express act of the legislature. To say that after the legislature has allocated the right to levy within the constitutional limitation binding upon it, that the taxing units are severally bound by their legislative *Page 535 limitations and, furthermore, that they are bound in the aggregate not to exceed the constitutional limitations, is to set up a system of double limitations, inconsistent, each with the other, while a system of single limitation is all that is contemplated. Limitations are essentially single. When it is attempted to set up a system of limitations within limitations, orderly method is lost in a maze of logical conflict. The thing does not admit of double standing.
So, in my humble opinion, the constitutional limitations apply directly to and bind the legislature alone. The levying units throughout the state are bound directly only by the legislative limitations prescribed in the enabling act. They are bound by lesser limitations than those contained in the constitution. Being so limited once, it is useless to say that they are again limited by higher figures.
I see no reason logically why the same principles that I have attempted to apply to road districts, which I think are clear and unanswerable, should not now with equal force be applied to school districts. The school districts contracted their debt with resources pledged to the payment thereof coextensive territorially with the districts themselves. The people of the districts by popular vote and through their duly elected representatives placed themselves with respect to this indebtedness in the position they now occupy. From a legal standpoint, it seems, therefore, entirely logical that for the purpose of discharging this indebtedness the legal existence of school districts must be preserved. If this be done, then it follows that levying power must be allocated by the legislature to the school districts on a district basis for the purpose of providing their debt service requirements for preexisting debt. To expect a county school unit to provide from its levy for school district debt service is to confront again a wasted levying power in order to preserve uniformity of levies as was seen in the case of district roads. The county school unit, erected by an independent enactment and for an entirely independent and separate public purpose, is to administer the schools henceforth as a totally different unit of government from the former school districts. The county unit is to be the instrumentality by which school affairs are operated and administered for the future. It is, therefore, necessary *Page 536 that the county unit should be given levying power for the current expenses of the schools. If the old school districts are to have a legal existence for the purpose of discharging their legally contracted pre-existing debt, and the county unit is to have its existence, unrelated to this debt but for the purpose of operating the schools from now on, it seems entirely logical and in consonance with legal principles that the old school districts should be given a levying power for debt service requirements, and that, as a separate and distinct proposition, the county boards of education should be given a levying power for the purpose of meeting the operating expenses of the schools. They would not then infringe upon one another and the school debt would be provided for on the same basis that has been suggested for district road indebtedness.
These two principles, it seems to me, would tremendously relieve the pressure of lost levying power that otherwise is brought about in order to preserve uniformity of levies.
Having relieved the situation thus far, we come to the proposition that perhaps some counties or other taxing units require still further relief. This can to a large degree be provided for, in my opinion, by the state taking over any part but not all of the operating expenses of the schools, and, to the extent that it does so, dispensing with the necessity of the county boards of education laying property levies for the schools. To the extent that the state does take over and provide money for the operating expenses of the schools, the legislature may give to other taxing units, as and where required, the levying power of which the county boards of education are relieved. This is a broad field. Approximately fifteen million dollars has heretofore been raised by direct levies to provide operating expenses of the schools. Inasmuch as the constitution of West Virginia makes the free school system a primary responsibility of the state and expressly enjoins upon the legislature the duty to provide for that system, to my mind, it is entirely clear that the state may furnish any part of the operating expenses of the state's free schools. Therefore, the state may go to the relief of the situation directly as to the schools, and thereby indirectly as to the other levying units, to the extent that it wishes to provide funds for the operating expenses of schools. *Page 537
It may be said that after the impounded levying powers have been released by measurably solving the question of uniformity through applying the principles suggested, and after the levying powers of other taxing units have been augmented to the extent that the state sees fit to take over the operating expenses of schools, that still some taxing units of the state would be unable to provide themselves with operating revenue. Upon such data as I have been able to examine it would seem that the taxing units that are still in distress for a means of providing their operating revenue after the things suggested have been done, are taxing units whose fiscal affairs in the main are in total and irrevocable confusion. It appears that some of them, at least, are in this position by reason of indebtedness irregularly contracted. It does not seem unavoidable that these taxing units should be made the standard by which a solution of the questions of applying the tax amendment for the whole state should be arrived at. However, for the sake of argument, conceding that local government in these taxing units cannot be permitted to be jeopardized even on account of a hopeless debt situation brought about by themselves, or on account of failing to solve their problem by legislation putting the tax amendment into effect, we have still the provision of the tax amendment to the effect that the limitations erected thereunder in any taxing unit may be extended fifty per cent by the vote of the people of the unit. This provision has been generally disregarded in the discussion of legislation under the tax amendment. It has been so disregarded because it is conceived to be impracticable, under the circumstances, to procure the required sixty per cent of the registered voters of the unit in favor of an extension of the limitations, even to prevent a breakdown of their own local government. To my mind, this court cannot disregard an express provision of the tax amendment obviously put there to meet governmental emergencies, because it or others may consider the provision impractical. It was put there for a practical purpose. We must presume that the legislature in writing and the people in adopting the tax amendment believed this provision would serve the purpose for which it was intended. For the court to disregard this provision as *Page 538 impractical is to ignore the very means provided to meet the emergencies that the tax amendment would bring about, and to strain the constitution in order to provide the people of the unit with something that they will not provide for themselves. It is a sad commentary on local government to say that the people of a unit would vote to deprive themselves of it. So that at rock bottom, all things else having failed to give the required relief, the people of the governmental unit may provide fifty per cent more revenue, or any part of that amount, by extending the limitations in that particular unit, and may specify that that revenue be used for any purpose that they wish. If the extension is submitted to popular vote, under appropriate legislation, with the purpose for which the revenue will be expended expressly stated, then in my humble judgment that revenue can be expended only for the purpose so specified. It is quite clear, to my mind, that as long as this provision remains in the tax amendment and cannot be disregarded by the courts, we do not reach the question of sheer and absolute necessity until it has been invoked. The legislature may set up provisions by which this may be very quickly done in any of the taxing units of the state.
Supposing that all of the adjustments herein suggested should, as to some taxing units of the state, fail to work out a solution which would provide them with the bare essentials of local government. Without claiming exhaustive research that would enable me to state with certainty, it is my belief that the taxing units, if any, so situated would be relatively small in number. If this be true, then it could, with justice, still be said that a solution of the difficulties involved in applying the tax amendment suitably to the needs of the state at large had been arrived at, and that those few taxing units remaining in difficulty were so situated because of peculiarities existing in their own fiscal affairs. The seriousness of a breakdown in local government is not to be minimized. But I see no reason why, if a solution suitable to the needs of the overwhelming number of taxing units throughout the state can be arrived at, that that solution should be impeded because of a comparatively small number of taxing units requiring special treatment unnecessary throughout the state *Page 539 at large.
I, of course, do not claim for what is here said that it will meet the situation to the minds of all. Neither do I mean to say that there may not be other and, perhaps, better ways to solve the problem. To my mind, the conclusion set forth is relatively satisfactory. It may be that a totally and absolutely satisfactory solution cannot be arrived at, at the moment, and by the instrumentality of one single piece of legislation. The matters herein set forth, in my opinion, run counter to none of the provisions of the constitution nor do they violate any decision of this court. If difficulties remain after we have progressed toward a solution, at least these difficulties have been and will be minimized as we go along. As the difficulties are narrowed, so is the solution focused.