23 Mont. 229 | Mont. | 1899
Lead Opinion
after stating the case, delivered the opinion of the court.
The contention is made by appellants that the statute under which the elections were held in the various districts is not capable of being executed, and that, therefore, no valid assessment can be made thereunder. If this contention is sus
“The board of trustees of any district may at any time when in their j udgment it is advisable submit to the qualified electors of the district the question whether a tax not to exceed ten mills on each dollar on the taxable property in the district shall be raised to purchase lots and to furnish additional school facilities for said district or for building one or more school houses, or for removing or building additions to one already built, for the purchase of globes, maps, charts, books of reference and other appliances or apparatus for teaching, or for any or all of these purposes. Such election shall be called by posting notices in three public places in the district for at least fifteen days before the election and by publishing for at least one time in some newspaper published in the county in which the said district is located a notice of such election, provided that this shall apply only to districts containing a school board of more than three trustees and conducted as nearly as practicable according to the provisions herein made for holding annual school elections. The notice shall contain the time and place of holding the election, the amount of moneys proposed to be raised and the purpose or purposes for which it is intended to be used. At such elections the ballot shall be in form as follows: ‘Shall a tax not to exceed --- mills be raised to furnish additional school facilities for said district or for building a school house or for improving a school house or for building additions to one aL ready built, as the case may be.
*237 “ ‘Tax, Yes.
“ ‘Tax, No.’
‘ ‘The elector shall prepare his ballot by crossing out thereon parts of the ballot in such a manner that the remaining part shall express his vote upon the questions submitted. If a majority of the votes cast are ‘Tax, Yes,’ the officers of the election shall certify the fact to the assessor of the county, who shall at once proceed to copy from the last assessment roll of the county assessor the list of -property liable to taxation, situated in or owned by residents of his district, and shall deliver the same to the board of trustees, who shall allow him therefor out of the proceeds of said tax two dollars per day. The trustees shall upon receiving the roll, deduct ten per centum therefrom for anticipated delinquencies, and then by dividing the sum voted, together with the estimated cost of assessing and collecting added thereto, by the remainder of the roll, ascertain the rate per centum required and the rate so ascertained (using the full cent on each one hundred dollars in the place of any fraction) shall be and is hereby levied and assessed to, on or against the persons or property named or described in said roll; and it shall be a lien on all such property until the tax is paid and said tax if not paid within the time limited within the next section for its payment shall be recovered by suit in the same manner and with the same costs as delinquent state and county taxes. The trustees upon receiving any assessment roll from the assessor shall give five days’ notice thereof by posting a notice in three public places in the district and shall sit foi at least one day as a board of equalization at such time and place as shall have been named in said posted notices; and they shall have the same power as county boards of equalization to make any change in said assessment roll. ” (Section 1910 b.)
“As soon as the rate of taxation has been determined, as provided in the last preceding section, the trustees shall certify the same to the county clerk, who shall extend the same upon the general assessment roll of the county, and certify the same to the county treasurer, who shall proceed to collect*238 the tax in the same manner and at the same time, and with the same power and authority to enforce the payment of the same, as in the case of the county and state taxes. The county treasurer shall place any tax so collected to the credit of the district to which it belongs.” (Section 1941.)
The act of which section 1940b is a part was passed during the closing days of the session of the legislature, and, as Justice Pigott well says of it in State ex rel. Knight v. Cave, 20 Mont. 468, 52 Pac. 200, “presents an example of the careless legislation which is common, and which the courts are continually called upon to interpret or construe.” It is nevertheless an expression of the legislative will on the subject under consideration, and must be executed, if its intention can be discerned and it is possible to carry it out as directed. It is fundamental that the courts will sustain the acts of the legislature in every case in which it is possible to do so under the recognized rules of interpretation. It is only where, after the measure in question has been subjected to the test of all the standards of interpretation, the intention cannot be discerned, or the means of carrying it out are not provided, or are inadequate, that it will be declared inoperative and void. A brief review of the history of the sections under consideration will be helpful. Section 1940b was brought-forward from the Compiled Statutes of 1887 (Fifth Division, Section 1905) as part of an act approved March 11, 1895, and adopted as a part of the Political Code of 1895. It appears in that Code as the latter part of section 1940. In course of the transfer into the Code, a change was made in the requirement as to the form of question to be submitted to the voters by the trustees. Under the older statute, the trustees were required to determine the amount of money desired, and after notice, the same in form as that required by section L940b, the voter indicated his desire by voting “Yes” or “No” as to this amount. In case of a favorable vote, the method of determining the rate was the same as is now provided. In section 1940, supra, the question to be submitted to the voter is
So, if an act of the legislature is so vague and uncertain in its terms as to convey no meaning; or if the means for carrying out its provisions are not adequate or effective; or if it is so conflicting and inconsistent in its provisions that it cannot be executed, it is incumbent upon tUe courts to declare it void and inoperative. (State v. Partlow, supra; Chaffee’s Appeal, 56 Mich. 244, 22 N. W. 871; Ward v. Ward, 37 Tex. 389; Drake v. Drake (4 Devereaux’s Law), 15 N. C. 110; Hughes’ Case, 1 Bland 46; In re Hendricks (Kan. Sup.), 57 Pac. 965; Farmers’ Bank v. Hale et al., 59 N. Y. 53; Pillow v. Gaines, 3 Lea 466; Suth. St. Const. Sec. 220.)
There is still another cogent reason why Section 1940b is inoperative. The evident meaning of Section 1941 is that, after the rate has been fixed as provided in 1940b, not only the rate, but also the roll, prepared and equalized by the trustees, must be certified to the county clerk for extension upon the general tax roll of the county for collection by the treasurer. The word £ ‘same, ’ ’ as used in the latter section, evidently refers to the equalized roll as well as to the rate; otherwise, the work of the board, sitting for the purposes of equalization, would be nugatory, and, the rate only being certified, the basis of taxation to which the rate would be applied would be different from that upon which it was computed. We cannot suppose thatothe legislature intended that the rate should be computed upon one valuation, and the tax collected upon another. And yet this would be the case if the rate only were to be certified, for the mandate of Section 1940b, supra, is that the last assessment roll must be used; that is, presumably, the one of the previous year. That this
Section. 1910b was considered by this Court in State ex rel. Knight v. Cave, supra, but the question presented here was not involved in that case. The only question presented there was upon the meaning of the expression “additional school facilities, ’ ’ used among the enumerated purposes for which a tax might be voted.
The judgment of the district court will therefore be reversed, and the cause remanded, with directions to sustain the demurrer.
Reversed and remanded.
Rehearing
ON MOTION FOE EEHEAE1NG.
__Counsel for plaintiff, in his motion for rehearing herein, while admitting that he has no substantial ground upon which to base the application, insists that the importance of the question involved is alone sufficient to justify a re-examination of the case. At the time the original opinion was handed down, we were fully aware of the importance of the case, and of the probably disastrous consequences of the conclusion reached therein to many of the school districts throughout the state. Yet, when confronted with the necessity of a choice between declaring the sections of the statute in question invalid and assuming the functions of the legislature, there was but one course left to us. We could find no other legitimate solution of the matter. Nor are we now, after a further examination of the statute itself and the authorities cited by counsel, able to announce a different conclusion.
We do not think the suggestion made by counsel will avoid the difficulty. The aim of the provision fixing the form of question to be submitted and the ballot to be used is to have the voter authorize the tax, and at the same time to impose a limit upon the burden to be borne for any one year. Can it
The fundamental idea of the section under consideration is that the voter must give his consent to a tax limited by bounds over which the trustees cannot step even with the voter’s consent. After a suitable resolution has been passed by the board, the notice is given, the vote taken, and the record made up. From the record it does not appear that the voter has consented to the tax contemplated by the notice. It
In our opinion, it is impossible to observe the requirements of the statute, under the rules of construction applicable to it, without making a substantial amendment to it sufficient to carry out one or the other of the theories contemplated by its inconsistent provisions.
The motion for a rehearing is denied.
Denied.