This was an action to recover from the county treasurer of McCurain county a certain sum of money, which it was alleged was paid to him under protest upon an illegal levy of taxes for county purposes by the excise board of said county. Upon trial "to the court there was judgment for the defendant for costs, and the plaintiff in error, being dissatisfied therewith, commenced this proceeding in error for the purpose of reviewing the action of the trial court. By agreement of counsel, the only question of law presented for our consideration involves the right of the excise board to make a county levy of 1 mill "for separate schools" in addition to a levy of 1 mill "for common schools." For the purpose of presenting this question, it was further agreed that the levy made for said McCurtain county for said year is the total of the following named county levies, to wit: For general county purposes, 5 mills; for sinking fund, 1.6 mills; for common schools, 1 mill; for separate schools, 1 mill.
It is the last item to which plaintiff takes exception. If we understood counsel, they base their contention that this item is illegal upon the assumption that this levy is regugnant to that part of section 9, art. 10, Williams' Constitution, which limits the county levy to not more than 8 mills, and further provides that any county may levy not exceeding 2 mills additional for county high school and aid to the common schools of the county, not over 1 mill of which shall be for such high school, and the aid of said common schools, and shall be apportioned as provided by law. They say that this proviso does not authorize the county excise board to make a county levy "for separate schools." In our judgment, there is nothing in the record which indicates that it was the intention of the excise board that the item to which exception was taken should be levied as "aid to the common schools of the county," or that they were of the opinion that they derive such authority from the foregoing constitutional provision. Section 3, art. 13, Williams' Constiution provides: *Page 317
"Separrate schools for white and colored children with like accommodation shall be provided by the Legislature and impartially maintained."
In pursuance of this constitutional mandate, section 8, art. 15, c. 219, Session, Laws 1913. was enacted, which provides:
"In all counties where county separate schools for white and colored children are maintained, the county excise board shall annually levy a tax on all taxable property in their respective counties sufficient to maintain such separate schools, as hereinafter provided. Upon an estimate made by the county commissioners, said taxes shall be estimated, published, levied and collected, in the same manner as other taxes for county purposes. * * *"
The foregoing provisions, it seems to us, specifically clothe the excise board of McCurtain county, it being a county where separate schools are maintained, with authority to make the levy complained of. The trial court held that, so long as the amount of the total levy for county purposes did not exceed the limitations upon the "county levy 11 contained in section 9, art. 10, Williams' Constitution, to wit, 8 mills, it could not be held to be illegal. We are of the opinion that this much, at least, may be said with perfect safety. Counsel for defendant contends that, inasmuch as the Constitution makes it mandatory upon the Legislature that separate schools for white and colored children shall be provided with like accommodations and impartially maintained, there need be no limit upon the power placed in the county authorities to furnish the necessary funds by taxation to carry out this mandate. As the county levy herein does not exceed the constitutional limitation for county purposes, there is no necessity at this time for going any further than the trial court did.
For the reasons stated, the judgment of the court below is therefore affirmed.
All the Justices concur, except