Great Northern Railway Co. v. Severson

50 N.W.2d 889, 78 N.D. 610, 1951 N.D. LEXIS 113

• Court: North Dakota Supreme Court
• Decided: October 29, 1951
• Docket: File 7167
• Status: Published

Opinions

Morris, C. J.

Osago School District No. 58 is a common school district in the County of Nelson maintaining and operating a standard four year high school. On August 13, 1946, the governing board of the district unanimously adopted a resolution pursuant to the provisions of Section 57-1602 ROND 1943 declaring that the amount of taxes which may be raised at the maximum rate authorized by law would be insufficient to provide an adequate amount for the necessary requirements of the school district and that it was necessary to levy taxes in excess of the statutory levy limitation for the purposes of meeting the current expenses of the district to the extent of fifty per cent of that limitation for the years 1946 and 1947. The question of increasing the levy limit was submitted to the electors of the district at a special election on the 24th of September, 1946. The ballot stated the question as follows: “Shall Osago School District No. 58 levy taxes for the year (or years) 1946, 1947, which shall exceed the legal limit by 50%, so that the taxes levied for this current year instead of being $4989.95, which is the limit authorized by law, shall be $7484.92?” At this election 94 votes were cast in favor of the increase and 42 against.

At the time the proceedings were had to increase the levy limit, Section 57-1514 RCND 1943 was in effect, which authorized common school districts giving four years of standard high school work to levy taxes not to exceed twenty-two mills. The election had the effect of increasing that limit by fifty per cent, or by an additional eleven mills, making the total limit thirty-three mills, as authorized by the voters pursuant to the law then in effect.

Section 57-1514 RCND 1943 was amended and reenacted by Chapter 359, SLND 1947, that became effective July 1, 1947. Under that amendment a common school district giving four years of high school work may levy taxes not to exceed thirty-six mills.

The clerk of the school board of the district certified to the County Auditor of Nelson County for the year 1946 a levy of thirty-three mills, which was the maximum levy established by the electors of the district at the special election in 1946. Despite the fact that no other election was held in the district, the clerk of the school board, for the year 1947, certified a levy of 50.12 mills, which was 14.12 mills in excess of the thirty-six mill limitation established by Chapter 359, SLND 1947. This excess levy applied to the valuation of plaintiff’s property amounts to $903.85. This amount the plaintiff paid under protest and now seeks to recover.

The plaintiff does not contest the right of the school district to levy thirty-six mills as prescribed by Chapter 359, SLND 1947, but challenges the right of the school district to use the 1946 election and the levy increase approved at that time as a basis for increasing the levy limit prescribed by Chapter 359, SLND 1947.

In this action the plaintiff also seeks to recover the sum of $315.03, paid under protest as an excess levy made by Aneta Special School District No. 20, for the year 1947. The district called and held an election in 1946 to increase the levy by twenty-five per cent, under the same statutes and procedure as that followed by Osago School District No. 58, except that the form of the ballot was as follows: “Shall Aneta Special School District No. 20 levy taxes for the years 1946 and 1947 and 1948 which shall exceed the legal limit by 25% so that the taxes levied for those years, instead of being 5102.06 dollars, which is the limit authorized by law, shall be 6377.58 dollars?

Yes ■- No-”

The election resulted in twenty-five votes for and -one against the incréase. The ballot used in this election did not conform to that prescribed by Section 57-1606, which provides:

“Upon the ballot the question shall be submitted in substantially the following form:

Shall-school district levy taxes for the year (or years) -, which shall exceed the legal limit by-per cent, so that the taxes levied for this current year instead of being-dollars, which is the limit authorized by law, shall he-dollars:

Yes-

No-”

At the time the election was held in 1946, the legal levy limit was twenty-two mills, and the Clerk of Aneta School District certified the levy for that year at twenty-two mills, plus twenty-five per cent thereof, or 27-1- mills, which was the amount approved by the voters at the election. But in 1947 he certified the levy as forty-five mills. Thus he applied the twenty-five per cent increase to the new statutory limit of thirty-six mills provided by Chapter 359, SLND 1947. The plaintiff here challenges the right of the district to levy over thirty-six mills in 1947 and seeks to recover the excess of $315.03 which it paid under protest.

The facts are stipulated. The controversy is one of law. At the. time the elections were held the levy limit for both districts was twenty-two. mills. Osago authorized an increase of fifty per cent and Aneta authorized an increase of twenty-five per cent. 1946 taxes were levied by applying these increases to the base levy limit of twenty-two mills. The following year the legislature increased the limit of the levy that could he made without an election to thirty-six mills. No further election was held in either district. The question is: Can the district authorities apply the percentage increases that were approved. by the voters in 1946, when the limit was twenty-two mills, to the new limit of thirty-six mills that was established in 1947? The trial court answered this question in the negative and rendered judgment for the plaintiff.

School boards have no other powers than those which are conferred upon them by the legislature. Pronovost v. Brunette, 36 ND 288, 162 NW 300. The taxing power of a school district derives from the legislature. The legislature throughout the history of our state has meticulously circumscribed and limited the power of school boards to levy taxes by specific mill levy limitations which can be exceeded only by authority of the electors of the district in the manner prescribed by Chapter 57-16 RCND 1943. The legislature has been careful to provide by statute the manner and method by which the consent of the electors to levy taxes in excess of the limitations otherwise provided by law may be obtained. The first step is a declaration by resolution of the governing board of the district that the amount of taxes which may be raised at the maximum rate authorized by law will be insufficient and that it is necessary to levy taxes in excess of the statutory limitations for the purpose of meeting current expenses of the district, not to exceed seventy-five per cent over the legal limitation. This resolution must be passed by a two-thirds vote of all of the members of the board. Section 57-1602 RCND 1943.

A special election may be called by the governing board of the school district for the purpose of voting upon the question of authorizing an excess levy, as was done by both districts in this case. The notice of election is prescribed in considerable detail. It must give the year or years for which authorization is sought, as well as the percentage of the excess levy which is to be voted upon. And the notice must, among other things, provide electors with this information:

“1. The total amount of income and expenditures of such school district for the fiscal year preceding;

“2. The estimated expenditures for the year for which the taxes are to be levied;

“3. The aggregate amount of the tax levy which the governing body seeks authority to make;

“4. The aggregate amount of tax levy permissible without special authority from the electors; and

“5. The amount of the tax levy in excess of the statutory limit which the board seeks authority to make.” Section 57-1603 RCND 1943.

Of particular importance in this case is the information required to be given the electors under figures 3 and 4 above, from which a comparison can be made by the voter between the amount tliat can be levied within the statutory limitation and the total or aggregate amount for which the school board seeks authority to levy.

As further indicating the safeguards provided for the right of the elector to express his approval or disapproval of an excess levy, we note the vote required by statute for such approval. A majority of the voters may authorize an increase not to exceed twenty-five per cent over the legal limit, but “If the question submitted is for an increase of more than twenty-five percent and not to exceed fifty percent in the levy over the legal limit, a favorable vote upon such question by sixty percent of the electors voting shall be sufficient to authorize such excess levy. If the question submitted is for an increase of more than fifty percent and not to exceed seventy-five percent in the levy over the legal limit, a favorable vote upon such question by seventy percent of the electors voting on such question shall be sufficient to authorize such excess levy.” Section 57-1605 BOND 1943.

In connection with this section it may be noted that Osago School District voted to increase the mill limit by eleven mills by a vote of less than seventy per cent of the electors voting. Thus it is apparent that, if at that election the question had involved an increase of more than fifty per cent of the then legal limit, the proposition would have failed to carry for lack of the majority required by the statute. Despite this situation and in the face of the very obvious intention of the electors to increase the levy limit of Osago School District by eleven mills, the clerk of the district the next year certified a levy of 50.12 mills, which was an increase of 28.12 mills above the statutory limit that existed at the time of the election and 14.12 mills in excess of the limit fixed by the amendment. This indicates an utter disregard of the intention of the voters. Nevertheless, it is argued that the legislature intended that this might be done because it had the power to determine the levy limit and could fix it at any point within reason that it saw fit. But this contention is incompatible with the concern for the intention of the voters and their determination that is indicated by the statutes to which we have referred, providing for the increase in the levy limit by popular vote. It appears to us that the great care taken by the legislature to give the electors a complete picture of the effect of an excess levy upon the tax structure of the district indicates that it did not look upon excess levies with favor and intended that they should be approved only if absolutely necessary.

It is both a general and statutory rule of construction that the legislature intends an act to operate prospectively only, unless the contrary intention appears. Section 1-0210 RCND 1943. Blakemore v. Cooper, 15 ND 5, 106 NW 566, 4 LRA NS 1074, 125 Am St Rep 574; Adams & Freese Co. v. Kenoyer, 17 ND 302, 116 NW 98, 16 LRA NS 681; Warren v. Olson, 46 ND 203, 180 NW 529; E. J. Lander & Co. v. Deemy, 46 ND 273, 176 NW 922; Petters & Co. v. Nelson Co. 68 ND 471, 281 NW 61; Murray v. Mutschalknaus, 70 ND 1, 291 NW 118; Marks v. Mandan, 70 ND 434, 296 NW 34; Messersmith v. Reilly, 70 ND 638, 296 NW 920. Chapter 359, SLND 1947 which became effective July 1, 1947, provided a tax levy limitation of thirty-six mills, which was fourteen mills higher than the limitation in effect in 1946 when the- elections were held in Osago and Aneta School Districts. It is significant that when it increased the levy limit, the legislature made no change in the law providing the procedure for increasing the limit by a vote of the electors. All of the safeguards and restrictions previously provided remained in force. The amendment contains nothing to indicate that it was intended to apply to elections previously held. To say that the legislature intended to substitute, retroactively, the thirty-six mill limit for the Uoenty-two mill limit which was the basis upon which the voters of the respective districts approved the increases in prior elections is to attribute to the legislature an intent to give the statute an undeclared insidious retrospective operation contrary to the respect for the will of the voters of the districts that is indicated by the careful manner in which the legislature has prescribed the details of the procedure by which the levy limit may be increased.

This view is further supported by the general rule that where the legislative intention with respect to the meaning of tax statutes is doubtful, the doubt must be resolved against the government and in favor of the taxpayer. Standard Oil Co. v. State Tax Commissioner, 71 ND 146, 299 NW 447, 135 ALR1481; Goldberg v. Gray, 70 ND 663, 297 NW 124; Stern v. Gray, 72 ND 134, 5 NW2d 299; 51 Am Jur, Taxation, Section 316.

Reference has been made to the conditions which confronted the lawmakers with respect to school finances in many districts of the state. That condition has no bearing on this controversy. The 1947 legislature adequately provided for whatever emergency then existed by raising the mill levy limit from twenty-two to thirty-six mills, which could be further increased by holding elections in the respective districts in the manner prescribed by Chapter 57-16 RCND 1943.

Electors may authorize an increase above the thirty-six mill limit by the same procedure by which they authorized the increase above the twenty-two mill limit under the old law. No election has been held since the enactment of the amendment in either district. The increase sought to be applied here was determined by the officers of the respective districts and not by the electors. School district officers are not empowered by either the old or the new law to increase the levy limits that were provided in those statutes. A construction which applies a percentage increase approved by the voters when the limit was twenty-two mills to the new limit of thirty-six mills completely ignores the will and the action of the voters.

Chapter 359, SLND 1947 is wholly prospective in its operation. It established a limitation of .thirty-six mills, which became effective July 1,1947. It furnished no basis to which school district officers might apply the percentage of increase voted by school districts in elections held when the prior limit of twenty-two mills was in effect. The judgment appealed from is affirmed.

Burke, J., and Ilvedson, Dist. J., concur. Sathre, J., being disqualified, did not participate, Roy A. Ilvedson, Judge of Fifth Judicial District, sitting in his stead.