191 Iowa 81 | Iowa | 1921
The demurrer, among other grounds, challenges the sufficiency of the allegations of plaintiffs’ petition to state a cause of action, for the reason that Subdivision 26, Section 48, of the • Code of 1897, and Section 177-c, Supplement to the Code, 1913, require that the population of incorporated cities and towns be determined by and according to the population shown by the last preceding state or national census, and that it appears upon the face of plaintiffs’ petition that the population of Millers-burg, as shown thereby, was less than 200.
Subdivision 26, Section 48, of the Code of 1897, defines the word “population,” where used in the Code, and is as follows:
“The word ‘population,’ where used in this Code or any statute hereafter passed, shall be taken to be that as shown by the last preceding state or national census, unless otherwise specially provided.”
“Wherever in the Code, or any Supplement to the Code or any copy of the session laws prior to this date, the population of any county, city or town is referred to, it shall be determined by the last certified, or certified and published, official census, whether the same be state or national.”
Section 48 of the Code of 1897 corresponds with Section 29 of the Revision of 1860 and Section 45 of the Code of 1873, but Subdivision 26 of Section 48 and Section 177 first appeared in the Code of 1897. Section 177, as it appears in the Code of 1897, is a part of Chapter 8, Title II, which was repealed by Chapter 8, Acts of the Thirtieth General Assembly. Section 8 of said Chapter 8, Acts of the Thirtieth General Assembly, is as follows:
“Wherever in the Code or the Supplement to the Code, the population of any county, city or town is referred to, i-t shall be determined by the publication above provided for as of the date of said certificate, and such census publication shall be evidence of all matters therein contained, and of said certificate thereto.”
Chapter 8, Acts of the Thirtieth General Assembly, was amended by Chapter 3, Acts of the Thirty-fourth General Assembly, which repealed all acts or parts of acts in conflict therewith. Chapter 3, Acts of the Thirty-fourth General Assembly, appears as Section 177-c of the Supplement to the Code.
Section 48 of the Code of 1897 enacts certain rules to be observed in the construction of statutes, and is as follows:
“In the construction of the statutes, the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the general assembly, or repugnant to the context of the statute * * *”
Section 177 of the Code appears in the chapter relating to the census. Therefore, in the construction of statutes, the word “population” must be taken to refer to the number of inhabitants as shown by the last preceding state or national census, unless it is otherwise specially provided therein. Subdivision 26 of Section 48 of the Code and Section 177-c of the Supple
Counsel for relators cites authorities to the point that the legislature is without constitutional authority to enact rules of evidence and to make them conclusive upon one of the parties litigant, and therefore contend that, if the statutes quoted are given the interpretation evidently adopted by the court below, relators will be deprived of their day in court, and of the opportunity to vindicate their rights by a trial in accordance with the law of the land. Counsel in,this contention apparently overlooks the decisive point in the case. The question, as presented by relators, is not whether the “last certified or certified and published census” shall be treated as conclusive evidence of the population of Millersburg, or as prima-facie evidence only, but Whether the population of said town, as shown by the official census, or the population as found by actual count at the time of the commencement of the proceedings for the organization of the consolidated independent district, was intended by Chap
II. Chapter 149, Acts of the Thirty-eighth General Assembly, provides:
Schools and school districts: consolidated districts: population of city or “When it is proposed to include in such district a school corporation containing a city, town or village with a population of two hundred or more inhabitants, the voters residing upon the territory outside the limits of said school corporation shall vote separately upon the proposition to create such new district. ’ ’
Counsel for relators insist that this statute should be construed so as to make the population of the school corporation containing a city, town, or village determinative, and not the population of the city, town, or village. The language of the above enactment is plain, certain, and unambiguous. If the petition fixing the boundaries of a proposed consolidated independent school district includes a school corporation containing a city, town, or village with a population of 200 or more inhabitants, the voters residing upon the territory outside of said school corporation shall vote separately and in one ballot box, and those residing within the school corporation containing the city, town, or village having a' population of 200 or more inhabitants shall also have a separate ballot box. The statute refers to a school corporation containing a city, town, or village having a population of 200 or more, and not to a school corporation having a population of 200 of more, and also a city, town, or village. Possibly the provisions of Section 177-c might be avoided if the construction for which relators contend were adopted, but the language of the statute will not bear such construction.
Other related questions are discussed, but the case is disposed of by what has already been said. It follows, therefore,