* * not apply to the act of May 26, 1908, impos- | current expense of the state government (and ing an inheritance tax upon the transfer of any unexpended balance at the close of each fiscal year shall be credited to the common property, but applied only to annually reschool fund of the state as are other curring taxes. common school funds); the remaining one-half shall be, by the state treasurer distributed to the county treasurer of the counties from whence the same was collected, in proportion to the school enumeration of such counties, and the same shall be distributed in aid of common schools of such counties upon a per capita basis as are other common school funds." The construction of the constitutional provision before us has frequently been before the court of last resort of Kentucky. In Commonwealth et al. v. United States F. & G. Co., 121 Ky, 409, 89 S. W. 251, the order of the fiscal court of Taylor county levying a tax for the year 1901 wholly omitted to state the purpose for which the tax was levied, and the order was held to be void. In Chesapeake, O. & S. W. R. Co. v. Commonwealth, 129 Ky. 318, 108 S. W. 248, 111 S. W. 334, 33 Ky. Law Rep. 882, the order of the fiscal court levied a tax, but failed to designate the purpose for which it was levied, and it was likewise held invalid. To the same effect are Somerset v. Somerset Banking Co., 109 Ky. 549, CO S. W. 5; United States Fidelity Co. v. Board of Education, 118 Ky. 355, 80 S. W. 1191; Morrell Refrigerator Car Co. v. Commonwealth, 128 Ky. 447, 108 S. W. 926, 32 Ky. Law Rep. 1389. In Pulaski County v. Watson, 106 Ky. 500, 50 S. W. 861, it was ordered that the sheriff of Pulaski county for the year 1894 be directed to collect 25 cents on each $100 of the taxable property reported by the assessor for said year, and pay same to the county treasurer, in accordance with the law, for the purpose of paying claims against the county. The order was held sufficient. In McInerý v. Huelfield, 116 Ky. 28, 75 S. W. 237, the resolution of the fiscal court levied a tax of 38 cents on the $100, which recited that it was apportioned as follows: "Three cents for the purpose of creating a sinking fund with which to purchase a poor farm and erect suitable buildings thereon, 10 cents for the maintenance and repair of the public roads and bridges of the county, and 25 cents to defray the general county expenses." And it was held that the resolution satisfied the purposes of the levy with sufficient distinctness. In Mt. Pleasant v. Eversole, 96 S. W. 478, 29 Ky. Law Rep. 830, it was held that the ordinance of a town out of debt levying a property tax "for municipal pursufficiently specifies the purpose for which the tax was levied, within the provisions of section 180 of the Constitution, requiring an ordinance imposing a tax to specify distinctly the purpose for which the same was levied. poses * * In Meyer et al. v. Lynd-Bowman-Darby Co., 35 Okl. 480, 130 Pac. 548, the act providing for a graduated tax on land holdings did not specify distinctly or otherwise, the purpose for which the tax was levied, and was therefore held to be void. Turning to the act in question, we find that in section 4 it is provided that all gross production revenues collected by the state auditor under the provisions of the act shall be paid into the state treasury ** one-half to be credited to the general revenue fund of the state, and applied to the The act contains a further section that, if for any reason the provisions of section 4 may prove ineffective, then at once shall the proceeds of all gross production tax collected pursuant to the act be paid into the general revenue funds of the state, and be applied to the current expenses of the state government, and that any unexpended balance at the end of each fiscal year shall be credited to the common school fund of the state, to be distributed as are other common school funds of the state. We have seen, therefore, that the primary object of the act was to levy a tax, one-half of which should go into the general revenue fund of the state, the remaining one-half to be distributed to the counties from whence the tax was collected, in the proportion named; same to be distributed in aid of the common school funds of such counties. But, if the latter provision could not be made effective, then the entire proceeds of the tax collected should be applied to defray the ordinary expenses of the state; any unexpended balance at the end of each fiscal year to be credited to the common school fund of the state. But it is urged that the revenue collected is to be used in a manner contrary to the provisions of the Constitution; hence the purpose of the act is unlawful. The purposes for which the tax was imposed we have already seen. Generally speaking, it is the duty of the Legislature to provide for the levy of taxes to defray the expenses of the state government. The Legislature has also the power, under certain limitations, to levy a state tax in aid of the public schools. Atchison, T. & S. F. Ry. Co. v. State, 28 Okl. 94, 113 Pac. 921, 40 L. R. A. (N. S.) 1; Thurston v. Caldwell, 40 Okl. 206, 137 Pac. GS3. In its broadest sense, therefore, the purpose for which the tax is levied is not an unlawful one. Whether the tax collected should be credited and distributed under sections 4 and 4B of the statute is not necessary to a determination of the present proceedings. It involves a question of the distribution of the revenue collected when the same reaches the state treasurer. By the express language of the act, this court is given exclusive and original jurisdiction of any and all suits instituted to determine the validity of the act, and not to pass upon all questions arising out of its administration by the executive officers of the state. As to whether the revenues collected and received by the state treasurer should be credited and distributed under sections 4 or 4B of the "The invalidity of any section, subdivision, clause, or sentence of this act, shall not in any manner affect the validity of the remaining portion thereof." act, and the effect of the statute making oil of the act, with the invalid parts thereof on hand for more than 30 days at tax ren-stricken therefrom before passage. In Borgdering period liable to an ad valorem tax, nis v. Falk Co., 147 Wis. 327, 133 N. W. it is proper to call attention to article 3 of 209, 37 L. R. A. (N. S.) 489, it was said the statute, which provides that: that the court knew of no good reason why the Legislature might not declare its intention that one part or section of the law is not a compensation for, and that it may be separated from, the balance of the act, for the very purpose of saving such balance from being invalidated in case the first named part or section be held unconstitutional. In State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 Pac. 1101, 1114, 37 L. R. A. (N. S.) 466, it was held that by section 27 of the act the Legislature made clear that it did not intend the provisions relating to those who were entitled to partake of its benefits to be so far an integral part of the act that it could not be eliminated in part, without destroying the act in its entirety. Referring to this section, it was said: "It is there expressly provided that the adjudication of invalidity of any part of the act shall not affect the validity of the act as a whole or any other part thereof. This means that the Legislature intended the act to be enforced as far as it may be, even though it might not be valid in its entirety. It was competent for the Legislature so to provide." It is urged that one part of the statute cannot be declared void and leave any part in force, unless the statute is so composite, consisting of such separable parts, that, when the void part is eliminated, another living tangible part remains, capable by its own terms of being carried into effect, consistently with the intent of the Legislature, which enacted it in connection with the void part. A number of authorities are cited which announce the foregoing rule, and among which is that of Meyer v. Wells Fargo Co., 223 U. S. 298, 32 Sup. Ct. 218, 56 L. Ed. 445. The latter case was an appeal from the Circuit Court of the United States for the Western District of Oklahoma to review a decree enjoining the collection of a tax upon the gross receipts of a nonresident express company, and it was said that the act could not be upheld without being so remodeled that it would be a mere speculation whether the Legislature would have passed it in the new form. Generally, it may be said that because one section or provision of an act may be unconstitutional and void does not necessarily render the entire statute or enactment void; that, if the act can be given operation and effect without such void provision, the valid portions of it will be allowed to stand, unless the court is unable to say or to know that the Legislature would have passed the act without the void provision. Statutes similar in their wording to section 3 of the act have on several occasions been before the courts, and in each instance to which our attention has been called have been upheld, though not always without limitations upon the extent to which they should be allowed to control the courts in passing upon the validity of the statutes. In State ex rel. Clarke v. Carter, 174 Ala. 266, 56 South. 974, a section of the act provided that, if any of its provisions should It is urged that the act in question violated be held void, it should not affect any other the requirements of uniformity of taxation section or provision of the act. It was said prescribed by the state Constitution, and by the court that, by reason of such provi- thereby denies to the Wolverine Oil Comsion, it was relieved of any doubt as to the pany and others similarly situated the equal legislative intent. In State ex rel. Crump-protection of the laws of the state which the ton v. Montgomery, 177 Ala. 212, 59 South. Fourteenth Amendment of the federal Con294, it was held not within legislative com- stitution guarantees shall not be abridged petency to bind the courts by any declara- by state action. We may here observe that tion or pronouncement in their unfettered it cannot be denied but that the state, keepfunctions of determining the constitutional ing within the limits of its own fundamental validity of enactments. But it was said that law, can adopt any system of taxation or the court did not doubt that it was within classification that it deems best for the comlegislative competency to remove by express mon good and the maintenance of its governassertion in the act any uncertainty in the ment, provided such classification be not in judicial mind as to what the Legislature violation of the Fourteenth Amendment. would have done in respect of the adoption | Such is the demand and right of the states In Ex parte Schuler, 167 Cal. 282, 139 Pac. 685, Ann. Cas. 1915C, 706, a section of the statute in question provided that, if any part of the act should be declared unconstitutional, the Legislature intended to pass the statute without that part. And it was said that such statutes imposed upon the courts the duty of supporting the legislative will as far as possible. But, the question not going to, or at least not necessarily going to, the validity of the act, we refrain from the expression of any further opinion involving the law's administration; this because of the limitation upon our jurisdiction in an original suit. The tax not being an ad valorem tax on property, the statute imposing it is not in conflict with section 8, art. 10, of the Constitution, requiring that all property which may be taxed ad valorem shall be assessed for taxation at its fair cash value, estimated at the price it would bring at a fair and voluntary sale. in their relation to the general government, as recognized by the federal courts. In Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 10 Sup. Ct. 533, 33 L. Ed. 892, a case often cited, the question arose as to whether a statute of Pennsylvania subjecting bonds and other securities issued by corporations to a higher rate of taxation than was imposed on other monied securities was a denial of the equal protection of the laws to corporations. The contention was met by Mr. Justice Bradley, who held that there was no distinction which the state was not competent to make, saying: "All corporate securities are subject to the same regulations. The provisions in the Fourteenth Amendment that no state shall deny to any person within its jurisdiction the equal protection of the laws was not intended to prevent a state from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, except certain classes of property from any taxation at all, such as churches, libraries, and the property of charitable institutions. It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness or not allow them. All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the state Legislature, or the people of the state in framing their Constitution." Again, in Home Ins. Co. v. New York, 134 U. S. 594, 10 Sup. Ct. 593, 33 L. Ed. 1025, the question was the constitutional validity of a law taxing corporate franchises and business. The court held that the statute was not a denial of the equal protection of the laws. It said that: The amendment "does not prevent the classification of property for taxation-subjecting one kind of property to one rate of taxation, and another kind of property to a different ratedistinguishing between franchises, licenses, and privileges, and visible and tangible property, and between real and personal property." In Connolly v. Union Sewer Pipe Co., supra, it was held that a tax could be imposed only upon certain callings and trades; for, when the state exerts its power to tax, it is not bound to tax all pursuits or all property that may be legitimately taxed for governmental purposes. In Kentucky R. Tax Cases, 115 U. S. 321, 337, 6 Sup. Ct. 57, 29 L. Ed. 414, 419, the court sustained, as not inconsistent with the "equal protection" clause of the Fourteenth Amendment, the Kentucky statute providing for the assessment of railroad property for purposes of taxation in a mode different from that prescribed as to ordinary real estate, or as to the property of corporations chartered for other purposes, such as bridge, mining, street railway, manufacturing, gas, and water companies. The court said that: "The rule of equality in respect to the subject only requires the same means and methods to be applied impartially to all the constituents of and uniformly upon all persons in similar circumstances. There is no objection, therefore, to the discrimination made as between railroad companies and the other corporations in the methods and instrumentalities by which the value of their property is ascertained." In Delaware R. Co. Tax, 18 Wall. 206, 231, 21 L. Ed. 888, 896, it was said that: "It is not for us to suggest in any case that a more equitable mode of assessment or rate of taxation might be adopted than the one prescribed by the Legislature of the state. Our only concern is with the validity of the tax: all else lies beyond the domain of our jurisdiction." In Pacific Express Co. v. Seibert, 142 U. S. 339, 12 Sup. Ct. 250, 35 L. Ed. 1035, it was held that the Fourteenth Amendment of the United States Constitution did not prevent the state from adjusting its system of taxation in all proper and reasonable ways, nor the classification of property for taxation; that the Missouri statute imposing a tax upon the business of express companies was not repugnant to the Fourteenth Amendment because it did not impose a like tax upon railroad or steamboat companies which In Southwestern carried express matter. Oil Co. v. Texas, 217 U. S. 114, 30 Sup. Ct. 496, 54 L. Ed. 688, one of the last expressions of the Supreme Court on the subject at hand, it is said by Mr. Justice Harlan : "But we will not speculate as to the motives of the state, and will assume-the statute, neither upon its face nor by its necessary operation, not suggesting a contrary assumptionthat the state has by good faith sought, by its legislation, to protect or to promote the interests of its people. It is sufficient for the disposition of this case to say that, except as restrained by its own Constitution or by the Constitution of the United States, the state of Texas, by its Legislature, has full power to prescribe any system of taxation which, in its judgment, is best or necessary for its people and governStates is concerned, the state has the right, by ment; that, so far as the power of the United any rule it deems proper, to classify persons or businesses for the purposes of taxation, subject to the condition that such classification shall not be in violation of the Constitution of the United States." that all wholesale dealers in specified arIt was held that the statute requiring ticles should pay a tax of a given amount on their occupation, without exacting a similar tax on wholesale dealers of other articles, could not, on the face of the statute, or by reason of any facts within the judicial knowledge of the court, be held within the meaning of the Fourteenth Amendment, to deprive the taxpayer of his property without due process of law, and to deny him equal protection of the laws, and that the federal court could not interfere with the enforcement of the statute simply because it may disapprove its terms or question the wisdom of its enactment, or because it could not be sure as to the precise reasons inducing the state to enact it. These opinions are but few of the many expressions by the Supreme Court of the United States as to the power of the state in the passage of laws imposing or providing FICIENCY. Held, that the action of the trial court in sustaining the demurrer to the petition of appellant and dismissing the action was not error. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 296-316; Dec. Dig. by the terms of the act, that there is nothing | 4. MANDAMUS 154 - SUPERINTENDENT OF unreasonable or invidious in the selection of SCHOOLS-REINSTATEMENT-PETITION-SUFthe subjects of taxation, or in the classification thereof according to the Constitution of the state, and following the rule announced by the Supreme Court, we may fairly conclude that no rights of the producing companies vouchsafed by the federal Constitution have been denied, or in any wise impaired, by the provisions of the statute in question or the collection of the tax thereby imposed. This disposes of the principal contentions. and all we feel that go to the constitutionality, or involve the validity of that part of the act involved. There are, however, a Appeal from District Court, 154.] Benewah Action by E. H. Buck against the Board of Trustees of St. Maries Independent School District No. 1, in Benewah County, and another. From judgment for defendants, plaintiff appeals. Affirmed. Taylor & Hull, of St. Maries, for appel number of other questions of minor impor- lant. John P. Gray, W. F. McNaughton, and tance presented, but which have to do prin- C. H. Craig, all of Cœur d'Alene, and Wm. cipally with the administration of the law. D. Keeton, of St. Maries, for respondents. These should not be difficult of solution in the light of our conclusions. It would seem that all taxes illegally collected and held by the state auditor, if such there be, should at once be repaid those who paid such taxes, either in whole or in part, according to the facts. BUDGE, J. This action was brought by appellant Buck for a writ of mandate directing the board of trustees of St. Maries school district No. 1 in Benewah county to reinstate him as superintendent of schools in that dis trict. All taxes lawfully collected will, of course, be paid into the state treasury. The matter of the collection of an ad valorem tax is one for the proper taxing authorities. All the Justices concur. The respondents filed a general and special demurrer to the petition, which demurrer was sustained by the trial court. Thereupon appellant refused to plead further, and elected to stand on his original petition, whereupon judgment of dismissal of the action was entered. This is an appeal from the judgment. BUCK V. BOARD OF TRUSTEES OF ST. MARIES INDEPENDENT SCHOOL DIST. The petition for writ of mandate alleges NO. 1, IN BENEWAH COUNTY et al. that on August 31, 1914, and for some time (Supreme Court of Idaho. Dec. 31, 1915.) prior thereto and at all times mentioned in 1. MANDAMUS 154 SUPERINTENDENT OF the petition, the city of St. Maries and a porSCHOOLS-REINSTATEMENT-PETITION-SUF- tion of the surrounding territory did and FICIENCY. Where petitioner seeks to take advantage of a subdivision of an act which, among other things, provides that when an independent school district shall employ a specified number of teachers, it shall be known as an independent school district of class A, but fails to allege the number of teachers employed in said district, held, that the petition is bad on demurrer. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 296-316; Dec. Dig. 154.] now does constitute an independent school district of class A, known as "St. Maries Independent School District No. 1 in Benewah County, Idaho;" that on said date, and during all the times mentioned in the petition, appellant, Buck, was the holder of a valid teacher's certificate, authorizing him to teach in both the grade and high schools of the state of Idaho; that on the 31st day 2. STATUTES 161-CONSTRUCTION-AMEND- of August, 1914, the said school district, ATORY ACTS. Where an act of the Legislature is sought to be amended by two acts passed at the same session of a subsequent Legislature, and it ap; pears that the two amendatory acts conflict and are irreconcilable with each other, but the later amendatory act and the original act are rec oncilable, for the purpose of determining the intention of the Legislature the first amendatory act will be deemed to have been superseded and repealed by the latter. [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 230-234; Dec. Dig. 161.] 3. SCHOOLS AND SCHOOL DISTRICTS 63INDEPENDENT SCHOOL DISTRICTS-STATUTES. Held, that the trial court did not err in holding that subdivision B, § 129, c. 159, Sess. Laws 1911, as re-enacted by Sess. Laws 1913, c. 115, p. 450, which includes section 3, was superseded and repealed by chapter 159, Sess. Laws 1913, p. 527. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 149-160; Dec. Dig. 63.] through its board of trustees, entered into. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes damus instituted by appellant is the proper remedy need not be determined here. Subdivision B, supra, was first enacted by the Legislature during the eleventh session, and is to be found in the Session Laws of 1911 at page 532, and provides: "When an independent school district shall employ thirty-five (35) or more teachers, it shall of class A, and shall have, in addition to the be known as an independent [school] district above enumerated powers and duties, the following special powers and duties: * * "3. To employ a superintendent of schools for be the executive officer of the board, with such a term not to exceed three (3) years, who shall powers and duties as they may prescribe, together with such powers and duties as are now the state, to fix, allow and order paid his salary, or may hereafter be prescribed by the laws of and to discharge said superintendent for incompetency, immorality, or gross neglect of duty." At the twelfth session of the Legislature section 129, c. 159, Sess. Laws 1911, was amended, and subdivision B was re-enacted practically verbatim (Sess. Laws 1913, p. 450), the only change being that the number of teachers necessary to constitute a class A district was reduced to 20. This act was al manner act as such superintendent of schools in and for such school district, and as such executive officer during the school year of 1914-15, receiving therefor the consideration specified in said agreement; that on or about April 5, 1915, said school district, acting by and through its board of trustees, attempted to discharge appellant without cause, and did cause him to be notified that after the close of the school year of 1914-15 his services as superintendent of schools would no longer be desired by said school district, but did not attempt to discharge this appellant at any regular meeting of said board of trustees; and that said school district, acting by and through its board of trustees or otherwise, did not discharge, or attempt to discharge, appellant on the grounds that he had been guilty of incompetency, immorality, or gross neglect of said duties, but attempted to discharge him without a good and valid reason therefor, and without specifying any reason what soever. The complaint further alleges that under the provisions of Session Laws 1913, p. 450, appellant is given an absolute right by statute to be discharged only upon the ground that he has been guilty of incompetency, immorality or gross neglect of duty, and upon one or all of such grounds alone, but for no other reason or cause. The petition alleges that appellant has not been guilty of either or any of said grounds, and that his discharge was unauthorized, illegal, and wrongful and in excess of the powers granted to said school district, and prevents the use and enjoyment by appellant of the rights the petition on the ground that the number to which he is entitled. Petition further al- of teachers employed in the respondent disleges that on June 2, 1915, the appellant de-trict was not set up in the petition. In ormanded of the board of trustees of said der to bring appellant within the provisions school district that he be reinstated as su- of subdivision B, § 129, c. 159, Sess. Laws perintendent of the schools of said district, 1911, as amended by Sess. Laws 1913, c. 115, which demand the board of trustees refused. p. 450, or of subdivision B, § 129, supra, as Appellant alleges that he complied faithful-amended by Sess. Laws 1913, c. 159, p. 528. ly with all the terms and provisions of his agreement, and stands ready at all times to perform, comply with, and undertake the duties of superintendent of schools of said district and ex officio executive officer of the board of trustees, and that he has no plain, speedy, or adequate remedy at law. signed by the Governor on March 10, 1913. At the same session of the Legislature section 129, supra, was again amended, and the number of teachers necessary to constitute a class A district, as shown in subdivision B (Sess. Laws 1913, p. 528), was increased to 35, being the original number provided by the eleventh session, supra. This last act was signed by the Governor on March 12, 1913. [1, 4] The demurrer in this case assailed independent school district of class A. we think it was absolutely necessary for him to allege in his petition the number of teachers employed in the district by which he was employed to act as superintendent, and that the petition was subject to demurrer on this point. If the district did not employ the number of teachers provided for unThis case comes before this court on ap-der the act, it would not be classified as an peal, involving a question of law raised by the general and special demurrer as to the sufficiency of the petition, and may be determined, so far as the action of the trial court is concerned in sustaining the demurrer and dismissing the petition, upon the sole ground of whether subdivision B, § 129, c. 159, Sess. Laws 1911, as amended by section 17, c. 115, Sess. Laws 1913, p. 450, was in force and effect at the time the contract or agreement between appellant and the board of trustees of St. Maries independent school district No. 1 in Benewah county was entered into. If it was not in force at that time, [2, 3] The trial court held that subdivision B, § 129, c. 159, Sess. Laws 1911, as amended by Sess. Laws 1913, c. 115, p. 450, was not the law at the time the contract was entered into between appellant and respondent, because it was in direct conflict with subdivision B, § 129, c. 159, Sess. Laws 1911, as amended by Sess. Laws 1913, c. 159, p. 528. Going further, it will be seen, from a comparison of section 17, c. 115, Sess. Laws 1913, p. 449, with chapter 159, Sess. Laws 1913, p. 527, in both of which enactments section 129, c. 159, Sess. Laws 1911, was |