CHAPTER II THE CONSTITUTIONALITY OF EQUALIZATION AID IN THE STATES An examination of constitutional provisions and court decisions relating to equalization aid in the States is undertaken in this chapter in order to determine the extent to which the objectives of a Federal grant for equalization purposes may be limited or defeated. Most of the cases involve the apportionment and distribution of State aid funds, although in a number of instances the mechanics of payment and the control over the funds by the disbursing officer have been the subjects of court decisions. Equalization laws, or what are purported to be equalization laws, have been attacked on various constitutional grounds. The relevant constitutional provisions in the several States vary from the general to the specific; the reconciling of particular sets of facts with them has been a fruitful source of litigation. The Constitutionality of Equalization Statutes An Alabama case indicates the extent to which the courts will sometimes go in order to uphold equalization laws.1 In 1927 the Legislature of Alabama passed an equalization law which carried an appropriation for additional support for the public schools of the several counties of the State, distributed specific sums to certain named counties, and left a surplus which was to be apportioned among the several counties according to their needs so that all schools might have a minimum term of 7 months. The Alabama Constitution provides: ARTICLE IV, SECTION 71. The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the 1 In re Opinions of the Justices in re School Appropriation Act, 111 So. 312 (1927). executive, legislative, and judicial departments of the state, for interest on the public debt, and for the public schools, ARTICLE XIV, SECTION 256. The legislature shall establish, organize, and maintain a liberal system of public schools throughout the state for the benefit of the children thereof between the ages of seven and twenty-one years. The public school fund shall be apportioned to the several counties in proportion to the number of school children of school age therein, and shall be so apportioned to the schools in the districts or townships in the counties as to provide, as nearly as practicable, school terms of equal duration in such school districts or townships. . . ARTICLE XIV, SECTION 260. The income arising from the sixteenth section trust fund, the surplus revenue fund, until it is called for by the United States government, and the funds enumerated in sections 257 and 258 of this constitution, together with a special annual tax of thirty cents on each one hundred dollars of taxable property in this state, which the legislature shall levy, shall be applied to the support and maintenance of the public schools, and it shall be the duty of the legislature to increase the public school fund from time to time as the necessity therefor and the condition of the treasury and the resources of the state may justify. . . . It was contended that the Alabama act was unconstitutional because the fund was not apportioned to the several counties in proportion to the number of school children of school age in each. This objection was based on the assumption that the act dealt with the public school fund, the apportionment of which is regulated by section 256 of the constitution. The court held, however, that the act was not violative of the constitution because the school fund mentioned in section 256 is the fund arising from the specific sources enumerated and apportioned by other sections of the constitution, such supplement thereto as may be set apart to the fund out of the general treasury by the quadrennial act referred to in section 71 of the constitution, and any other appropriation which is set apart to this school fund to be apportioned under the constitution and statutes by the educational authorities of the State. The court pointed out that the subject matter of the act in question was a general fund in the State treasury not set apart to the public school fund to be apportioned and distributed by the educational authorities but, in the main, to be intercepted and apportioned by the legislature to certain named counties as an emergency appropriation. The court was explicit in its statement that since it is the duty of the State to maintain an adequate system of public education the appropriation for equalization purposes is in accord with the spirit of the constitution, and that in dealing with moneys in the State treasury, in the absence of express constitutional limitations, the power of the legislature is supreme. In order to sustain the statute, the Alabama court used the device of holding that moneys appropriated for equalization purposes do not become a part of the school fund of the State and therefore need not be apportioned according to the constitutional provisions relating to that fund. It is thus simple for a friendly court to evade a hard and fast rule of apportionment set out in the constitution and hold an equalization act valid. There is no doubt that the same conclusion can be reached regarding the distribution of any funds which may be provided by a Federal grant. In fact, this conclusion is more plausible in the case of Federal than of State appropriations. It seems logical to contend that since the framers of the State constitution could hardly have contemplated extensive Federal aid for education, and must therefore have had only State funds in mind when the constitution was drafted, these provisions do not apply to Federal funds. If this concept is adopted, Federal grants may be used in any manner provided in the appropriating act without regard to any State constitutional provision. The situation in Michigan may be contrasted with that in Alabama. The Michigan Constitution, as amended in 1911, article 11, section 9, provides that the school fund shall be apportioned according to the number of children in the various districts. In 1925 the legislature passed an act which provided that 5 percent of the school fund should be apportioned according to assessed valuation, but in 1928 this act was declared unconstitutional.2 In arriving at its decision the court pointed out that if the legislature may Board of Education of City of Detroit v. Fuller, 218 N. W. 764 (1928). L dispose of 5 percent of the fund in the unequal manner attempted by the act, it may so dispose of a larger part or all of the fund; if it may use assessed valuation as a basis of apportionment in a limited and qualified sense, it may use it to the full extent and provide that the whole fund shall be apportioned solely on the basis of assessed valuation. Or it may decide upon some other basis of apportionment. It is apparent that the mistake in this scheme was in deviating from the apportionment plan specified for a constitutional fund. In Alabama, however, it was decided that there had been no effort to apportion any fund controlled by the constitution. The Michigan Legislature has passed another statute which is designed to avoid the constitutional objection pointed out by the court in the Fuller case. It creates what is termed a "supplemental school fund." If the Michigan court follows the same line of reasoning as the Alabama court, this statute may be upheld. The situation in Colorado is unique. The Colorado Constitution contains the following provisions: ARTICLE X, SECTION 7. The general assembly shall not impose taxes for the purposes of any county, city, town, or other municipal corporation, but may, by law, vest in the corporate authorities thereof respectively the power to assess and collect taxes for all purposes of such corporations. ARTICLE XIV, SECTION 13. The general assembly shall provide, by general laws, for the organization and classification of cities and towns, the number of such classes shall not exceed four, and the powers of each class shall be defined by general laws, so that all municipal corporations in the same class shall possess the same powers, and be subject to the same restrictions. It is expressly provided by statute that school districts shall be bodies corporate. Most educators had believed that the Constitution of Colorado prohibited the levying of any State tax for the support of the public schools in that State. The constitution expressly provides that the State shall not levy taxes for the support of any municipal corporation. If school |