145 P. 653 | Or. | 1915
delivered the opinion of the court.
The proceedings were initiated under the provisions of Section 6384, L. O. L. Under this section three freeholders petitioned the road supervisor to call a district road meeting of the legal voters of the district to determine, under the provisions of Section 6386 et seq., what, if any, county roads in the district should be improved, the character and extent of the improvements, and to levy a special tax to defray the expenses thereof. The petition, with the affidavit of the road supervisor authenticating the same, to the effect that the signers were freeholders and legal voters residing in the district, was made a part of the record of the meeting. Notices of the time, place and object of the meeting signed by the road supervisor were posted in three public places in the district more than 10 days prior to the meeting, as shown by the affidavit of the district supervisor. Pursuant to the petition and notices, a meeting of the legal voters, freeholders and taxpayers of the district was held on November 22, 1913. By a majority vote a chairman and secretary were elected, the road supervisor acting as temporary chairman. A resolution was passed requiring the secretary to keep a record of the proceedings of the meeting and proof of posting of notices thereof, and
“Resolved, that the following county roads in this district be improved in the manner following, to wit: That portion of road No. 15 lying between road No. 77 and Mr. H. Behneke’s place, and road petitioned by Adolph Cook and others, and that portion of road lying between south end of Nehalem bridge and Chas. Gronnel’s place, and the portion of road extending from main county road on south side of Nehalem bridge in an easterly direction to McKay Creek. It is recommended that $400 be expended on Adolph Cook road, $500 on road leading to Behneke’s, $1,800 on that leading to Chas. Gronnel’s place, and $200 on road running to McKay Creek, and the balance of the five (5) mill levy be expended on the main county road between James Jamison’s place and end of road of road district No. 15 near Elsie. * *
“Resolved, that there be, and hereby is, levied a special tax of five (5) mills on the dollar upon all the taxable real and personal property of this district, for the purpose of raising money with which to defray the expenses of the special improvements heretofore by this meeting determined to be made.”
By a majority of the voters present the following resolution was also passed:
“Resolved, that the proposed improvements and the character and manner thereof, and the rate of tax levied therefor, be submitted to the County Court, and. that the secretary report back to this meeting the action taken by the County Court thereon.”
The record of the meeting, including the resolutions above quoted, was certified by the chairman and secretary, and filed with the county clerk November 25, 1913. The minutes of an adjourned meeting held November 28, 1913, show that the County Court approved the resolutions and the levy of a special tax; that all action taken was ratified by the voters of the
In the consideration of the case at bar we are not concerned with the efficacy or expediency of the provisions of the act of 1913 amending Section 6321. Neither the original act of 1909 nor the last amendatory statute expressly or impliedly repealed or amended the act of 1903: See Leffingwell v. Lane County, 64 Or. 144 (129 Pac. 538). Repeal of a statute by implication is not favored. It is the duty of the court, if possible, to so construe the acts that both will be operative. A general statute without negative
“(1) That the law does not favor a repeal of an older statute hy a later one by mere implication, (2) The implication, in order to he operative, must be necessary, and, if it arises out of repugnancy between the two acts, the later abrogates the older only to the extent that it is inconsistent and irreconcilable with it. * * A later and an older statute will, if it is possible and reasonable to do so, he always construed together, so as to give effect not only to the distinct parts or provisions of the latter, not inconsistent with the new law, hut to give effect to the older law as a whole, subject only to restrictions or modifications of its meaning, when such seems to have been the legislative purpose. * * A law will not be deemed repealed because some of its provisions are repeated in a subsequent statute, except in so far as the latter plainly appears to have been intended by the legislature as a substitute.”
In a recent opinion of this court by Mr. Justice Ramsey in Beirl v. Columbia County, 73 Or. 107 (144 Pac. 457), proceedings for the levy of a tax hy virtue of Sections 6384L6392 were upheld, thus giving the act under consideration in the case at bar full force.
‘ ‘ In voting the tax the people will be acting in their political capacity, and their action is to be favorably construed, and not to be overruled or set aside by judicial or any other authority, so long as they keep within the power bestowed upon them. Technical defects and irregularities should be overlooked, so long as the substance of a good vote sufficiently appears, for the obvious reason that local business is largely and of necessity in the hands of plain people who are unskilled in the technicalities of law and unaccustomed to critical or even accurate use of language. A strict construction of their doings would inevitably be mischievous, and would defeat the collection of revenue in very many cases. It will be found, therefore, that the courts sustain such action whenever sufficient appears to make plain the intent of the voters, provided the intent is warranted by law. ’ ’
Section 6386, L. O. L., directs:
“District road meetings legally called shall have power to determine what, if any, county roads or portions thereof of the road district shall be improved in any special manner, and to determine the extent and character of the improvement or improvements they shall make thereon; provided, however, that the proposed improvements, and the character and manner thereof, shall have first been submitted to the County Court; and shall have power to levy a special tax, not to exceed ten mills on the dollar, upon all the taxable real and personal property of the district, for the purpose of raising money with which to defray the expense of such special improvement or improvements, and such levy shall be based upon the valuation of the taxable property of the district as shown by the last*417 certificate of the county clerk next preceding the district road meeting at which the tax is levied. ’ ’
It is evident from a reading of the statute that the provisions for the obtainment of a certificate of the aggregate valuation of the taxable property of the district is a means for the voters of the district to secure information in order that they may vote intelligently upon the question of tax. The procuring of such certificate is not by the terms of the statute made a condition precedent to levying a tax. It is not alleged in the complaint that on account of the failure to procure such certificate the voters of the district made any error in levying the tax, or that the amount of the tax is unreasonable, or that any part thereof is unnecessary to improve the roads described. The statute does not require that such certificate, which is in the nature of a matter of evidence, should be made a part of the minutes of the meeting. At the most, the failure to obtain the certificate, if there was a failure, would be an irregularity only, and would not vitiate the proceedings of a road district meeting legally called.
“If any road district in this state shall determine to specially improve any county road or roads, or portions thereof, in such district, and to levy a special tax to defray the expense thereof, as provided in the last preceding section, they shall do so by proper resolution, describing therein the road or roads, or portions thereof, they wish to improve; giving the initial and terminal points of the desired improvement or improvements, with the character and extent and estimated expense thereof, and also the rate of the tax levied, which resolution shall be signed by the chairman and secretary of the meeting, and transmitted to the County Court by its next regular meeting following, and shall also be spread upon the minutes of the district road meeting.”
While the resolution is general as to the character and extent of the proposed improvements, the amounts to be expended are plainly stated, and the proceedings ■ relating' thereto are much more extended and specific than those approved by this court in Beirl v. Columbia County, 73 Or. 107 (144 Pac. 457). Applying the rule quoted from Judge Cooley that technical irregularities should be overlooked so long as the substance of a good vote sufficiently appears, we think the resolutions, taken as a whole, are a substantial compliance
The requirements of the statute for the protection of the taxpayers as to notice and legality of the road district meeting have, we think, been strictly complied with. We find no failure to observe the letter of the law which tends to injuriously affect the taxpayer: 37 Cyc. 971, 972. To require a more strict or technical fulfillment of the special road tax law by the legal voters of a road district than is shown by the record in .the case under consideration would be to practically nullify the statute authorizing such tax.
The lower court held that the tax levy as set forth in the complaint was valid. This holding was correct. There was no error in sustaining the demurrer to the complaint and in dismissing the suit.
The judgment of the lower court is therefore affirmed. Aeeirmed.