Susan REED, Bruce Moen, Ed Beyer, Judith M. Freeland, Richard A. Flieth, Charles Hanson, Ronald B. Gadberry, Jill DeNucci, Anne McSparron, Mary Hanson, Helen Goodfellow, Keith Meyer, Beverly Nelson, Julie M. Zerface, Petitioners and Appellees, v. HILLSBORO PUBLIC SCHOOL DISTRICT NO. 9, Respondent and Appellant.
Civ. No. 900392
Supreme Court of North Dakota
Nov. 12, 1991
477 N.W.2d 237
We have reviewed the remaining issues raised by the parties and find no reversible error. These issues do not warrant further discussion.
Zerr asserts that Peterson‘s appeal is frivolous and seeks attorney‘s fees and double costs under Rule 38, N.D.R.App.P. Peterson‘s appeal is not frivolous.
We reverse that part of the summary judgment ordering Peterson to pay costs and attorney‘s fees to Zerr; in all other respects the judgments are affirmed. We remand for entry of a judgment consistent with this opinion. Each party shall bear its own costs on appeal.
ERICKSTAD, C.J., and VANDE WALLE, LEVINE and MESCHKE, JJ., concur.
Chapman & Chapman, Bismarck, for petitioners and appellees; argued by Michael Geiermann.
Fleck, Mather & Strutz, Bismarck, for respondent and appellant; argued by Warren H. Albrecht, Jr.
Hillsboro Public School District No. 9 appealed from a judgment granting the petition of Susan Reed, Bruce Moen, Ed Beyer, Judith M. Freeland, Richard A. Flieth, Charles Hanson, Ronald B. Gadberry, Jill DeNucci, Anne McSparron, Mary Hanson, Helen Goodfellow, Keith Meyer, Beverly Nelson, and Julie M. Zerface for a writ of mandamus and ordering the District to restore $63,950.39 from its building fund to its special reserve fund. We reverse.
Upon review of the District‘s financial report for July 1, 1988, through June 30, 1989, petitioners discovered “that there was a transfer made from the special reserve fund to the capital expenditures fund of approximately $63,000.00.” Petitioners sought mandamus to require replacement of “funds taken from the special reserve fund and placed into the building fund.”
The trial court found: (1) that at a regular school board meeting on September 8, 1988, the District “passed a motion to request the county treasurer to transfer 50 percent of the special reserve fund of the District to the district‘s general fund“; (2) that the sum transferred was $68,804.31 including $4,853.92 in interest that was “not subject to the issues in this lawsuit“; (3) that the transferred money “was spent for the construction and maintenance of school district buildings“; and (4) that “[n]o evidence was presented to the Court that collections from taxes levied for the 1988-89 fiscal year were insufficient to meet the requirements of the budget for teacher‘s salaries, heat, light, and fuel.” The court concluded that, in making the transfer, the District “failed to comply with the provisions of
Those seeking mandamus must show a clear legal right to performance of the act to be compelled.
A writ of mandamus may be issued “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station” (
Peterson v. McKenzie County Public School Dist. No. 1, 467 N.W.2d 456, 458 (N.D.1991). School boards have “extensive discretionary powers relating to the raising, management, and disposition of funds for the operation and maintenance of schools.” Id. at 458. A school district is a municipality for purposes of
Since 1943, each school district has been authorized to set aside and maintain a special reserve fund “which shall not exceed in amount at any one time the sum which could be produced by a levy of the maximum mill levy allowed by law in that district for that year.”
Until 1987, use of the special reserve fund was governed by an earlier version of
Whenever collections from the taxes levied for the current budget are insufficient to meet the requirements of such budget for teacher salaries, heat, light, and fuel, a majority of the governing body of the school district, by resolution, may provide for the issuance of vouchers directed to the county treasurer, drawing on funds in said special reserve fund of such district. Such voucher may be substantially in the same form as a warrant, but shall not be a negotiable instrument, and shall direct the county treasurer to pay over to the school district from the special reserve fund the amount of money specified in the voucher. Subject to the limitations in the next section, the county treasurer shall transfer from the special reserve fund to the school district general fund the sum so specified, and shall enter such voucher in a book to be known as the special reserve fund voucher register in the order in which they are issued.
The amount of outstanding vouchers is limited and their repayment is provided through redemption from unencumbered taxes that have been levied for the general fund of the school district but that are uncollected at the time the voucher is issued.
Limitation on amount drawn from fund—Tax collections used to restore fund. The amount of outstanding, unredeemed vouchers shall never exceed in the aggregate a sum equal to eighty-five percent of the unencumbered uncollected taxes for the current and fifty percent for the four preceding years which are apportionable to the general fund of such school district. Such vouchers, in the hands of the county treasurer, shall be redeemed from the collections of such uncollected taxes....
In 1987,
Special reserve fund—How and when used.
1. Whenever collections from the taxes levied for the current budget are insufficient to meet the requirements of the budget for teacher salaries, heat, light, and fuel, a majority of the governing body of the school district, by resolution, may provide for the issuance of vouchers directed to the county treasurer, drawing on funds in the special reserve fund of the district.... Subject to the limitations in section 57-19-07, the county treasurer shall transfer from the special reserve fund to the school district general fund the sum so specified, and shall enter the voucher in a book to be known as the special reserve fund voucher register in the order in which they are issued.
2. The governing body of the school district, by resolution, may withdraw without repayment fifty percent of the funds from the special reserve fund of the school district.
The critical question is whether the District was authorized to withdraw funds from the special reserve fund in 1988 for any purpose other than “to meet the requirements of the budget for teacher salaries, heat, light, and fuel,” as restricted in subsection 1, or whether the withdrawal authorization in subsection 2 is separate and independent from that restriction. The trial court construed the statute to mean that a withdrawal of funds under subsection 2 is limited by subsection 1. We disagree.
In construing a statute, “consideration should be given to the ordinary sense of the statutory words, the context in which they are used, and the purpose which prompted their enactment.” County of Stutsman v. State Historical Society, 371 N.W.2d 321, 327 (N.D.1985). We recently summarized a number of related tenets of statutory construction:
The interpretation of a statute is a question of law, fully reviewable by this court. Ladish Malting Co. v. Stutsman County, Etc., 351 N.W.2d 712 (N.D.1984). The primary purpose of statutory construction is to ascertain the intent of the Legislature. E.g., County of Stutsman v. State Historical Society, 371 N.W.2d 321 (N.D.1985). The Legislature‘s intent initially must be sought from the language of a statute. Id. Unless words in a statute are defined in the code, they are to be given their plain, ordinary, and commonly understood meaning. Sections
1-02-02 ,1-02-03, N.D.C.C. ; County of Stutsman v. State Historical Society, supra. If the language of a statute is ambiguous or of doubtful meaning, extrinsic aids may be used to interpret the statute. Id.
Kim-Go v. J.P. Furlong Enterprises, Inc., 460 N.W.2d 694, 696 (N.D.1990). “It is of course axiomatic that our construction of any statute must ‘effect[] its objects and promot[e] justice.’ Section
The text and structure of
In 1987, the Legislature temporarily amended
The minutes of the Senate Education Committee hearing of April 15, 1987 do little to clarify:
The amendment states that the district will only pay back 50% of the money they take out of the special reserve fund. Rep. Hoffner stated that if we could use the school construction fund, we could use it as a loan rather than a loan. Sena-
tor Kelsh stated he could see nothing wrong with using part of the fund for using the construction part of the electronic media projects.... Howard Snor[t]land stated the reason the way the special reserve fund is set up the way it is now is for school districts to help them get money out to pay salaries, lights, electricity, fuel, and etc. It would be in a case of an emergency. Three mills are set up aside from the total mills. These funds, in current law, have to be repaid back. Senator Kelsh commented that we have to realize that this money is their money. Senator Freborg commented the advantage of this amendment would be they only have to pay 1/2 of the money back.
But the minutes of the Senate Education Committee hearing of March 31, 1989 imply that withdrawals under subsection 2 were not intended to be subject to the former limitations:
JOE WESTBY, NDEA spoke in favor of the bill, stating that they are supporting this because it gives the school district another mechanism to deal with fluctuation in revenue, such as they experience in August when funds were cut by executive order.
MR. AL KOPPANG, DPI spoke in favor of the bill stating that a number of school districts have utilized this law. Previous to the 1987 session, this fund could only be used for heat, lights, and salaries.
The minutes of the House Education Committee hearing of March 8, 1989 carry a similar implication:
Sen. Clayton Lodoen, Dist. 13, West Fargo, sponsor, testified in support.... We need to be able to get more money for projects, etc. We want authority to withdraw from special reserve funds.
*
Rep. Wilkie stated he is voting against the bill because it is transferring money from special funds; it is turning special reserve into the general funds.
The minutes of the House Education Committee hearing of March 11, 1991 state:
Rep. Larson: We need this to give flexibility to the school districts.... It wouldn‘t be needed if we got adequate foundation aid payments.
*
Dr. Richard Ott, North Dakota School Boards Association, testified in support.... They need the flexibility and accessibility to the money.
The minutes of the Senate Education Committee hearing of March 18, 1991 state:
Sen. Lindgren, cosponsor, ... In these current economic and fiscal times it‘s important to give a school district this kind of flexibility.
*
Marvin Leidal, Superintendent in West Fargo, testified in support of HB 1608. Having access to half of the principal in the special reserve fund has been very helpful. If they wouldn‘t have this, they would most likely have had to make $150,000 in cuts in each of the past three years than what was already made.
Thus, testimony during legislative committee hearings on the temporary amendments generally reflects an understanding that subsection 2 provides school boards with greater “flexibility” in using special reserve funds because those withdrawals are not subject to the same conditions of use and repayment as vouchers under subsection 1. That conclusion is especially supported by the testimony of Mr. Koppang of the Department of Public Instruction that “[p]revious to the 1987 session, this fund could only be used for heat, lights, and salaries“; Senator Lodoen‘s testimony that “[w]e need to be able to get more money for projects, etc.“; and Representative Wilkie‘s testimony, in opposition to the legislation, that “it is turning special reserve into the general funds.”
From our examination of
Because the District‘s withdrawal of funds from its special reserve fund for its general fund was within its “discretionary powers relating to the raising, management, and disposition of funds for the operation and maintenance of schools” (Peterson, 467 N.W.2d at 458), the District could not be compelled to repay them. We therefore conclude that the trial court erred in granting the petitioners a writ of mandamus and ordering the District to transfer funds from its building fund to its special reserve fund to repay the withdrawal.
The judgment is reversed.
ERICKSTAD, C.J., and VANDE WALLE and GIERKE, JJ., concur.
LEVINE, Justice, dissenting.
In reaching its result, the majority has breached a number of statutory-construction thou-shalt-nots. I list the most obvious: Thou shalt not: (1) overlook the whole, of which the statute at issue is a part, or the purpose of the whole; (2) render meaningless any provision of a statute; (3) construe one section of a statute to implicitly repeal another; (4) construe a statute to create a conflict between its sections.
In Peterson v. McKenzie County School Dist. No. 1, 467 N.W.2d 456 (N.D.1991), we construed a variety of statutes to allow a school board to transfer funds from its general fund to its building fund. Somehow, the majority tries to justify its unsound construction of section
Section
In Peterson, we carefully noted that, unlike the use of general funds at issue in that case, the use of special funds was specifically restricted by a number of statutes. Peterson at 460. Section
In support of its construction, the majority relies on, and draws selective inferences from, ambiguous legislative history. However, it is clear that even within the quoted legislative history set out in the majority opinion, there are contrary inferences as well. For example, Senator Freborg believes that “the advantage of the amendment would be they only have to pay one-half of the money back.” Minutes of Senate Education Hearing April 15, 1987. So, too, I can find favorable inferences for my view from legislative history that is not set forth in the majority opinion. However, candor impels the conclusion that the legis-
Instead, I rely on sections
Subsection (2) was added to section
We should construe the language of subsection (1) to establish the conditions precedent for a transfer of special reserve funds, and subsection (2) to establish the terms of repayment of borrowed special reserve funds. So construed, both subsections are harmonized, both are given meaning and effect, both are read as a whole, and both are energized to promote the legislature‘s intent to protect the special reserve fund‘s purpose while alleviating the financial problems of school boards. That way, special funds will be used for teachers salaries and utilities, not for other purposes which the legislature has deemed less critical.
I would affirm the judgment of the trial court and so I dissent.
GERALD W. VANDE WALLE
JUSTICE
HERBERT L. MESCHKE
JUSTICE
BERYL J. LEVINE
JUSTICE
RALPH J. ERICKSTAD
CHIEF JUSTICE