The opinion
ON MOTION FOR REHEARING.
L. E. Trezevant in a motion for rehearing reviewed the opinion and urged:
It is submitted that the statutes under and by authority of which said tax is levied and sought to be collected and the proceedings thereunder are repugnant to the bill of rights and the fourteenth amendment to the Constitution of the United States, upon the following grounds, to-wit:
To tax one man’s property to educate another man’s child is to take one man’s property and give it to another, which is against common right and is excepted out of the powers of government by the bill of rights and the fourteenth amendment of the Federal Constitution.
Such an exercise of power is permissible only when it is granted by the people, and only as it may be granted; nor is it to be supposed that a power which is an abridgment of common right would be conferred without limitation.
It is an elementary principle of law that where power is granted the power is to be exercised subject to the conditions and within the limitations that accompany the grant.
In the case at bar the conditions under which the power granted is to be exercised and the limitations annexed to the grant are well defined and clearly set forth in section 10, article 11, of the Constitution of this State.
Since all proceedings done under a statute by which the life, the liberty, or the property of the citizen may be taken must, to be valid, be done in conformity with the statute, so where a power is granted to a Legislature by the exercise of which the property of the citizen may be taken, the exercise of this power to be valid must be in conformity with the terms of the grant, and if not in conformity with the terms of the grant and the property of the citizen is taken, such a taking is not the due course of the larv of the land. ■
The record shows that the statutes in question and the proceedings complained of by appellants are not in conformity with the terms and limitations prescribed by the Constitution, and that the city of Galveston as a municipal corporation is not within the terms or intendment of section 10, article 11, of the Constitution of this State.
*31 It is submitted that the levy of the tax in question and the process for its collection are unauthorized by the law of the land and is within the prohibition of the fourteenth amendment of the Federal Constitution, and that the court erred in holding said tax to be legal.
The motion for rehearing was transferred to the Austin Term.
Gaines, Associate Justice, overruling the motion.—Having carefully considered the motion for a rehearing in this case, we are of opinion that it should be overruled. The grounds upon which we maintain the validity under our State Constitution of the laws called in question by this appeal are stated in the opinion already delivered, and we think any further discussion of the same questions unprofitable.
It is, however, submitted in this motion that the laws authorizing the tax complained of are contrary to that clause of the fourteenth amendment of the Constitution of the United States which provides that no State “shall deprive any person of life, liberty, or property without due process of law.” We have endeavored to show in the former opinion that the tax was levied in accordance with the Constitution and laws of this State. If we are correct, it follows that the collection of the tax was in due course of law, unless it should be broadly held that taxation for the purpose of maintaining free schools is not within the powers of a State government. But we know of no authority which holds this. On the contrary, so far as we are aware, the power of the State to maintain -schools at the public expense, though rarely questioned in the courts, has been uniformly upheld. Commissioners v. Hartman, 17 Penn. St., 118; Stuart v. School District, 30 Mich., 69 ; Richards v. Raymond, 92 Ill., 612 ; Briggs v. Johnson Co., 4 Dill., 148 . Taking property under the taxing power is due process of law. High v. Shoemaker, 22 Cal., 363 ; Davidson v. New Orleans, 96 U. S., 97 .
The rehearing is refused.
Rehearing refused.
Opinion May 29, 1888.