Lead Opinion
Section 791 of the Code provides that “ the provisions.relating to general elections shall govern special elections, except where otherwise provided by law.” The election at which the tax was voted was a special election, and, as the general election for the election of officers must be held in the new township, it is insisted that the special election must also be held there. But the statute under which the special election was held provides that the notice therefor “ shall specify the time and place” at which it shall be held. It may, therefore, be held at a place other than where the general election is held, unless such place is manifestly unsuitable. Besides this, the words “ for election purposes,” in section 384, must, we think, be construed to refer alone to the first election of officers in the new township, as defined in«the five sections of the Code following section 384. There is no provision of the statute which authorizes or contemplates any election in the new
The question is fairly presented whether the power to vote a tax has been exhausted when a prior tax, which has been voted and levied, has not been abandoned or canceled; or whether the power is not exhausted until the tax has been levied and becomes a legal charge. In other words, the real question is one of power, and is that exhausted by the vote of the electors? It is said by counsel that the circuit court held that the power was exhausted by the vote, and based the ruling on Dumphy v. Supervisors of Humboldt Co., 58 Iowa, 273. But that case simply holds that, when a tax of five per cent “has been voted, levied and collected,” the power is exhausted; and it was said by Beck, J., in that case, that the conclusions reached “ are not to be understood as apjfiicable to cases wherein taxes have been voted and levied and afterwards for any cause are abandoned, or cannot be collected.” The cited case cannot, therefore, be regarded as decisive of the question to be determined in the present case.
In the construction of a statute, the object, purpose and intent must be considered, and particular words used should be construed with reference to the purpose in view in enacting the statute. The real intent of a statute, if it can with reasonable certainty be ascertained, will prevail over the literal sense of the words employed. District Township v. Dubuque, 7 Iowa, 262; Tully v. Beaubien, 10 Id., 187; Dilger v. Palmer, 60 Id., 117. The primary object of the statute under consideration was to enable the people of a city or township, by the imposition of a tax on their property, to so materially contribute to the construction of a railroad that the same would be, within a time fixed by the electors, completed and operated to some point so near such township or city as to, in the judgmeut of the electors, be beneficial to them. To merely vote a tax, or to vote that a certain amount should be raised by taxation, would never accomplish such a result. "While, under the statute, it is essential that the tax
The statute should be construed as if written thus: The aggregate amount of tax “ to be voted and levied” shall not exceed five per cent. In the construction of statutes, the words “ and” and “ or” are convertible, as the sense may require, even in a criminal statute, where a strict construction usually prevails. State v. Myers, 10 Iowa, 448; State v. Brandt, 41 Id., 593. In Boyles v. McMurphy, 55 Ill., 236, “ or” was construed as “ and.” In favor of this construction several reasons may be given: (1) Because, as has been shown, there cannot be any aggregate amount of taxes until the essential requisites of the power of taxation have been executed. (2) If the vote exhausts the power, then the spirit, meaning and intent of the statute will be nullified; because it must follow, if the statute is literally construed, that the electors can vote but one five per cent tax, although the road in aid of which the tax was voted is never constructed, and
When the tax in question was levied, no other tax in aid of a railroad was in existence. Therefore, the aggregate of taxes never exceeded five per cent, and we are content to rest our conclusion on the construction of the statute which we have adopted.
Reversed.
Dissenting Opinion
dissenting. Where a tax of five per cent has been voted and levied, as in this case, I do not think that the electors of the township have power to vote an additional tax until the former levy has been set aside, or the tax, for some reason, has become uncollectible. The majority seems to treat the vote in question as a provisional vote; that is, a