McCabe

This action was brought to recover from the defendant, as tax collector, the amount of certain taxes paid under protest.

Certain school districts in Contra Costa county combined to establish a high school under an act of the legislature, entitled “An act to provide for the establishment of high schools in the state of California,” approved March 20, 1891. (Stats. 1891, p. 182.) The plaintiff questions the validity of a tax levied under this law.

It is contended that the law is unconstitutional, in that it authorizes the county superintendent of schools to furnish to the board of supervisors an estimate for the tax, and makes it the duty of the board to proceed to fix a rate which will realize the amount, thus leaving the amount of the tax wholly to the discretion of an executive officer, and leaving no discretion in the board. The law provides, “ an annual tax shall be levied by the authorities, whose duty it is to levy taxes in counties, cities, incorporated towns, the amount of said tax being estimated by the county superintendent of" schools, . . . . and by him certified to the proper authorities, on on before the second Monday of September of each year. And it shall be the…