The following opinion was filed October 11, 1932:
Owen, J.
This action was brought by the plaintiff against the town of Townsend to recover an alleged invalid tax, paid to the town treasurer of the town of Townsend under protest. The tax claimed to be illegal was a county tax levied by the county board of Oconto county at its annual meeting held in 1930. The assessed valuation of the county for the year 1929 was $27,272,295. Sec. 70.62 (2), Stats., provides that the “total amount of county taxes assessed, levied and carried out against the taxable property of any county in any one year shall not exceed in the whole one per centum of the total valuation of said county for the preceding year as fixed by the Tax Commission, excepting in so far as a larger per centum may be necessary in order to meet indebtedness incurred prior to the passage and publication of this act.” Plaintiff contends that the total amount of taxes which the county was authorized to levy in 1930 was $272,722.95. The amount’ actually levied was $344,501.84. According to plaintiff’s contention, the amount levied in excess of $272,722.95, amounting to $71,778.89, was an invalid levy. It claims that the proportion of this invalid levy assessed against it and paid under protest amounted to $219.15, which it is entitled to recover.
The first limitation upon the. amount of county taxes which may be levied is found in ch. 293, Laws of 1895, and [89]*89the limitation there fixed was three per centum of the total assessed valuation of the county. This limitation was changed to one-half of one per centum by ch. 439, Laws of 1903. It was again changed by ch. 430, Laws of 1907, fixing the limitation at one per centum, which limitation has obtained to the present time. The defendants do not controvert the obvious fact that the tax levied by the county board in 1930 exceeded the one per centum limitation in the amount above indicated. Their contention is that many items entering into the total levy are not included within the one per centum limitation. They make a general contention to the effect that, since the limitation of one per centum was fixed in 1907, much legislation has been passed imposing added burdens upon the county calling for the assessment of taxes for many purposes additional to those for ■which counties were required to raise taxes at the time the limitation of one per centum was fixed, and that it must be presumed that as the legislature added these additional burdens, making it necessary for the levy of taxes for new purposes, it intended such levies to be in addition to and not included within the one per centum limitation.
' The one per centum limitation must be held to apply in every instance where the legislature imposes additional burdens calling for additional taxes unless the legislative intent be revealed, either expressly or by implication, that the additional burden is not to be included within the one per centum limitation. It was not the legislative thought, when the one per centum limitation was imposed, that counties would assess up to that limitation. The purpose was; to prevent the burden of taxation by the county exceeding, the one per centum limitation.' As additional burdens: were' imposed, it might well have been assumed by the legislature that the one per centum limitation afforded ample opportunity for the county to discharge its obligations imposed by the new legislation, keeping within the one per centum [90]*90limitation. In case all the burdens imposed upon the county crowded, the one per centum limitation, then it became the duty of the county to balance its budget and so arrange its expenditures that the total thereof would not exceed the one per centum limitation. This must be taken as the true purpose of the one per centum limitation, except in those cases where the legislature at the time of imposing new obligations upon the county disclosed an intention that such additional obligations were not to be considered within the one per centum limitation.
The defendants place great reliance upon the principle announced in Oconto City Water Supply Co. v. City of Oconto, 105 Wis. 76, 80 N. W. 1113, and in Kyes v. St. Croix County, 108 Wis. 136, 83 N. W. 637. Those cases laid down the rule that “when the legislature confers authority upon a municipal body having power to levy taxes to contract a debt for some specific object, and makes no special provision for its payment, the very act of conferring the power to create the liability by implication clothes, the municipal authorities with power to levy the necessary tax to discharge it,” irrespective of any general limitation imposed upon the taxing power. This principle was elucidated in U. S. ex rel. Ranger v. New Orleans, 98 U. S. 381, at p. 395, as follows:
“Indeed, it is always to be assumed, in the absence of clear restrictive provisions, that when the legislature grants to a city the power to create a debt, it intends that the city shall pay it, and that the payment shall not be left to its caprice or pleasure. When, therefore, a power to contract a debt is conferred, it must be held that a corresponding power of providing for its payment is also conferred. The latter is implied in the grant of the former, and such implication cannot be overcome except by express words excluding it.”
We cannot see that this principle has any application here. The county has not been authorized to incur any specific [91]*91debt or to enter into any specific contract. Unless the municipality has been authorized to enter into a contract with some third party the carrying out of which on its part requires the levy of a tax, the principle above stated has no application.
We therefore proceed to examine the various items entering into the total of this tax levy with a view of ascertaining whether the legislature intended that any of them should not be included within the one per centum limitation.
First of all, the levy includes an item of $43,750 for county school tax. The trial court excluded this item as not being within the one per centum limitation. There is po question but that prior to the passage of ch. 536, Laws of 1927, this item did not constitute a county tax. State ex rel. Board of Education v. Hunter, 119 Wis. 450, 96 N. W. 921. As the law stood prior thereto, the county board was required to determine “the amount to be raised by tax in each town for the support of common schools for the ensuing year, which shall not in any town be less than the amount apportioned to such town in the last apportionment of the income of the school fund.” Sec. 70.62, Stats. 1925. This was simply a provision requiring towns to raise at least as much for school purposes as they received from the state for such purposes. It was a tax with which the county had nothing to do and, rather obviously, did not constitute a county tax, as was distinctly held in the Hunter Case, supra. However, ch. 536, Laws of 1927, generally, revised the law extending state aid to school districts, and placed such state aid upon a different basis. The underlying principle of the law is, that the education of the youth of the state is a matter of state concern, and that the property of the state should in a measure bear the expense of educating the youth of the state. This principle was extended to the counties, and the county was required to levy a tax on all of the property of the county to be apportioned to [92]
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The following opinion was filed October 11, 1932:
Owen, J.
This action was brought by the plaintiff against the town of Townsend to recover an alleged invalid tax, paid to the town treasurer of the town of Townsend under protest. The tax claimed to be illegal was a county tax levied by the county board of Oconto county at its annual meeting held in 1930. The assessed valuation of the county for the year 1929 was $27,272,295. Sec. 70.62 (2), Stats., provides that the “total amount of county taxes assessed, levied and carried out against the taxable property of any county in any one year shall not exceed in the whole one per centum of the total valuation of said county for the preceding year as fixed by the Tax Commission, excepting in so far as a larger per centum may be necessary in order to meet indebtedness incurred prior to the passage and publication of this act.” Plaintiff contends that the total amount of taxes which the county was authorized to levy in 1930 was $272,722.95. The amount’ actually levied was $344,501.84. According to plaintiff’s contention, the amount levied in excess of $272,722.95, amounting to $71,778.89, was an invalid levy. It claims that the proportion of this invalid levy assessed against it and paid under protest amounted to $219.15, which it is entitled to recover.
The first limitation upon the. amount of county taxes which may be levied is found in ch. 293, Laws of 1895, and [89]*89the limitation there fixed was three per centum of the total assessed valuation of the county. This limitation was changed to one-half of one per centum by ch. 439, Laws of 1903. It was again changed by ch. 430, Laws of 1907, fixing the limitation at one per centum, which limitation has obtained to the present time. The defendants do not controvert the obvious fact that the tax levied by the county board in 1930 exceeded the one per centum limitation in the amount above indicated. Their contention is that many items entering into the total levy are not included within the one per centum limitation. They make a general contention to the effect that, since the limitation of one per centum was fixed in 1907, much legislation has been passed imposing added burdens upon the county calling for the assessment of taxes for many purposes additional to those for ■which counties were required to raise taxes at the time the limitation of one per centum was fixed, and that it must be presumed that as the legislature added these additional burdens, making it necessary for the levy of taxes for new purposes, it intended such levies to be in addition to and not included within the one per centum limitation.
' The one per centum limitation must be held to apply in every instance where the legislature imposes additional burdens calling for additional taxes unless the legislative intent be revealed, either expressly or by implication, that the additional burden is not to be included within the one per centum limitation. It was not the legislative thought, when the one per centum limitation was imposed, that counties would assess up to that limitation. The purpose was; to prevent the burden of taxation by the county exceeding, the one per centum limitation.' As additional burdens: were' imposed, it might well have been assumed by the legislature that the one per centum limitation afforded ample opportunity for the county to discharge its obligations imposed by the new legislation, keeping within the one per centum [90]*90limitation. In case all the burdens imposed upon the county crowded, the one per centum limitation, then it became the duty of the county to balance its budget and so arrange its expenditures that the total thereof would not exceed the one per centum limitation. This must be taken as the true purpose of the one per centum limitation, except in those cases where the legislature at the time of imposing new obligations upon the county disclosed an intention that such additional obligations were not to be considered within the one per centum limitation.
The defendants place great reliance upon the principle announced in Oconto City Water Supply Co. v. City of Oconto, 105 Wis. 76, 80 N. W. 1113, and in Kyes v. St. Croix County, 108 Wis. 136, 83 N. W. 637. Those cases laid down the rule that “when the legislature confers authority upon a municipal body having power to levy taxes to contract a debt for some specific object, and makes no special provision for its payment, the very act of conferring the power to create the liability by implication clothes, the municipal authorities with power to levy the necessary tax to discharge it,” irrespective of any general limitation imposed upon the taxing power. This principle was elucidated in U. S. ex rel. Ranger v. New Orleans, 98 U. S. 381, at p. 395, as follows:
“Indeed, it is always to be assumed, in the absence of clear restrictive provisions, that when the legislature grants to a city the power to create a debt, it intends that the city shall pay it, and that the payment shall not be left to its caprice or pleasure. When, therefore, a power to contract a debt is conferred, it must be held that a corresponding power of providing for its payment is also conferred. The latter is implied in the grant of the former, and such implication cannot be overcome except by express words excluding it.”
We cannot see that this principle has any application here. The county has not been authorized to incur any specific [91]*91debt or to enter into any specific contract. Unless the municipality has been authorized to enter into a contract with some third party the carrying out of which on its part requires the levy of a tax, the principle above stated has no application.
We therefore proceed to examine the various items entering into the total of this tax levy with a view of ascertaining whether the legislature intended that any of them should not be included within the one per centum limitation.
First of all, the levy includes an item of $43,750 for county school tax. The trial court excluded this item as not being within the one per centum limitation. There is po question but that prior to the passage of ch. 536, Laws of 1927, this item did not constitute a county tax. State ex rel. Board of Education v. Hunter, 119 Wis. 450, 96 N. W. 921. As the law stood prior thereto, the county board was required to determine “the amount to be raised by tax in each town for the support of common schools for the ensuing year, which shall not in any town be less than the amount apportioned to such town in the last apportionment of the income of the school fund.” Sec. 70.62, Stats. 1925. This was simply a provision requiring towns to raise at least as much for school purposes as they received from the state for such purposes. It was a tax with which the county had nothing to do and, rather obviously, did not constitute a county tax, as was distinctly held in the Hunter Case, supra. However, ch. 536, Laws of 1927, generally, revised the law extending state aid to school districts, and placed such state aid upon a different basis. The underlying principle of the law is, that the education of the youth of the state is a matter of state concern, and that the property of the state should in a measure bear the expense of educating the youth of the state. This principle was extended to the counties, and the county was required to levy a tax on all of the property of the county to be apportioned to [92]*92the school districts in the county upon the basis therein fixed. Sec. 70.62, Stats. 1929, required the county board to determine “the amount to be raised by tax in each town, village and city for the support of common schools for the ensuing year, in accordance with the provisions of section 59.075.” Sec. 59.075 was created by ch. 536, Laws of 1927, and provides that “The county board of each county is empowered at or before its November meeting each year to order the levying of a tax upon the aggregate assessed valuation of the county for the common schools in an amount not less than the product of two hundred fifty dollars multiplied by the number of public elementary teachers employed in the county during the preceding school year as certified by the county superintendent of schools and by city superintendents of schools not under the supervision of the county superintendent.” It is to be noted that under the old law the county board was required to levy a school tax which shall not in any town be less than the amount apportioned to such town in the last apportionment of the income of the school fund. Under the new law, sec. 59.075, the county board is empowered to make a levy for such purpose. We see the difference in the purpose of the two laws when we consult sec. 20.245 (5) (a), Stats. 1929, which provides that when the county shall fail to levy the tax authorized by sec. 59.075 the schools in that county shall not-share in the state aid. The sum and substance of this law is that there is not only a state aid for schools but also a county aid for schools, and that in counties where the county aid is not extended, the schools do not participate in the state aid. • The tax is levied upon all the taxable property of the county. It is- not distributed back to the various towns in the amounts contributed by such towns, but in accordance with the number of teachers that have been employed in such towns. This clearly makes the present school tax [93]*93levied by the county board a county tax. This is a substantial addition to the functions of the county since the original limitation upon taxation was fixed, yet we find nowhere in the statute any intimation that it was not the legislative intent to include such added tax within the one per centum limitation. It will be noticed that the county can do as it pleases about levying this tax. If it cannot levy the tax without exceeding the one per centum limitation, then it may forego the tax. We hold that this item was improperly excluded by the trial court in arriving at the amount of the levy which was within the one per centum limitation.
The levy complained of also included $4,500 as salary and expenses of county superintendent of schools. Sec. 70.62, Stats. 1929, provides “that the county board shall, by separate resolution adopted by a majority of the members of the board not prohibited from voting thereon by section 39.01, determine the amount of tax to be levied to pay the compensation and allowances of the county superintendents of schools and designate therein the cities exempt from taxation therefor.” Sec. 39.01 (5) provides that “Cities which have a city superintendent of schools shall form no part of the county superintendent’s district, shall bear no part of the expense connected with the office of county superintendent of schools; and'shall have no part in the determination of any question or matter connected with or arising out of said office, nor shall any elector or supervisor of such city have any voice therein.” The trial court excluded this item as not being within the one per centum limitation. He evidently did this because of the phraseology of sec. 70.62, which requires the county board to determine (1) the amount of taxes to be levied in their county for county purposes; (2) the amount to be raised for the support of common schools; and (3), by separate [94]*94resolution, the amount to be levied to pay the compensation of the county superintendent of schools. The reason for the adoption of a separate resolution with reference to the salary of the superintendent of schools was due to the fact that those members from cities having a superintendent of schools were disqualified from voting on such resolution, hence it could not be adopted as a part of a resolution concerning which all were entitled to vote. The county superintendent is a county officer, even though his district is less than the whole county. Sheboygan County v. Gaffron, 143 Wis. 124, 126 N. W. 542. This office was in existence at the time of the imposition of the oné per centum limitation, and there is no reason to believe that the legislature did not intend his salary and expenses to be included within the one per centum limitation. The trial court was in error in excluding this item.
The trial court also excluded an item of $750 for county bridge aid, raised pursuant to the provisions of sec. 87.01, Stats. For reasons already discussed, we can see no ground upon which that item can be excluded. We discover no provision anywhere in the statute to indicate, either expressly or by implication, that the legislature did not intend the amount so appropriated to be included within the one per centum limitation.
The trial court also excluded an item of $22,025 for bonds and interest on bonds. That this item should not be excluded is plainly apparent from the provisions of sec. 70.62, which fixes the one per centum limitation, “excepting in so far as a larger per centum may be necessary in order to meet indebtedness incurred prior to the passage and publication of this act.” The last publication of the act was in 1907 and, consequently, there was no indebtedness in 1930 incurred before the passage of the act. The express provision that amounts required to meet indebtedness [95]*95incurred prior to the publication of the act negatives the idea that indebtedness incurred after the publication of the act shall* be excluded from the one per centum limitation.
The trial court also excluded an item of $1,365.56 for soldiers’ relief, levied under the provisions of sec. 45.10, Stats. That section of the statutes makes it the duty of every county board to annually levy, “in addition to all other taxes, a tax sufficient to carry out the purposes of this section.” The phrase “in addition to all other taxes” indicates a legislative intent that, at all events, the county boards shall levy the tax provided by that section, whether or not the levying of the tax exceeds the one per centum limitation. There could be no other reason for the phrase. Taxes levied under this section were not intended to be included within the one per centum limitation.
We arrive at the same conclusion with reference to highway taxes levied under the provisions of sec. 83.06, Stats. Sub. (4) of that section provides that “The county board shall annually levy a tax of not more than two mills on the dollar, which tax shall be in addition to all other taxes, and shall be kept in a fund known as the ‘County Road and Bridge Fund;’ and expenditures from said fund shall be made only for the purposes of constructing and maintaining highways and bridges under the provisions of this chapter, and for the purpose of purchasing, operating, renting and repairing machinery, quarries and gravel pits used in such construction and maintenance.” The levy included an item of $120,000 levied under the authority of this section. The court found that this item was $131,100, which was erroneous. The total amount of tax collected for highway purposes was $121,100, but $1,100 was levied under the provisions of sec. 83.14 as aid to towns. It will be noted that the tax levied under sec. 83.06 “shall be in addition to all other taxes.” This indicates a clear legislative intent that [96]*96taxes levied pursuant to the authority of that section shall not be included within the one per centum limitation. However, a question of statutory construction arises by reason of the fact that the original act, ch. 337, Laws of 1911 (sec. 1317m — 5 (6), Stats.), provided that such tax shall be in addition to all other highway taxes. This remained in the law until the revision of 1923 (ch. 108), when the revisor struck out the word “highway” and making the provision read “in addition to all other taxes.” It is contended by the plaintiff that the revisor did not intend to change the law, that he so said in his notes, and that the law should now be construed to read as it did before the revision, and that the levy authorized by sec. 83.06 (4) should be construed as one “in addition to all other highway taxes,” and not “in addition to all other taxes,” citing Van Brunt v. Joint School District, 185 Wis. 493, 201 N. W. 755, and Wisconsin G. & E. Co. v. Fort Atkinson, 193 Wis. 232, 213 N. W. 873. It is true that where there is ambiguity in a statute that has met with revision at the hands of the revisor, it will be presumed that no change in the law was intended, and the statute will be construed as expressing the law as it was prior to the revision. However, in order to invoke that rule there must be ambiguity in the statute. We have recently considered this question in Kugler v. Milwaukee, 208 Wis. 251, 242 N. W. 481, and reached the conclusion that when an enactment of a revisor’s bill leaves the law ambiguous, “no doubt full force should be given to the idea that, as no change in the law was intended, no change in the law was effected; but where, as here, there is no ambiguity, but a plain declaration of repeal, we cannot avoid giving that declaration effect.” The law under'Consideration may be the result of error, but the present statutes, upon which our citizens have a right to rely, suggest no ambiguity and afford no opportunity for construction. The law must [97]*97therefore be interpreted as it reads. We conclude that the two-mill tax levied pursuant to sec. 83.06 (4) is not to be included within the one per centum limitation, but that the entire levy of two mills authorized by that section may be in addition to the one per centum limitation.
However, $120,000 was actually levied for highway purposes, which is $65,555.41 in excess of the two mills additional tax authorized by sec. 83.06. If it should be held that sec. 83.06 (4) is a limitation upon the amount of highway taxes which may be levied by the county, then that excess would be invalid, whether or not the total amount of the other taxes was under the one per centum limitation. But we do not construe sec. 83.06 (4) as a limitation upon the power of the county to levy highway taxes. Rather extensive obligations are imposed upon the county with reference to the maintenance of highways, and it is not to be presumed that the legislature intended to limit the county levy for that purpose to two mills. Sec. 83.06 (4) is rather a command than a limitation. It provides that the county board shall annually levy a tax to be known as the "County Road and Bridge Fund” and expenditures therefrom shall be for the purposes therein enumerated. This does not indicate a limitation upon the power of the county to levy a tax for highway purposes if it can be done within the one per centum limitation, but rather commands the county to constitute a “County Road and Bridge Fund,” for which purpose it may levy a tax “in addition to all other taxes,” and not to exceed two mills. The county was therefore authorized to levy a tax in 1930 up to the full amount of its one per centum limitation,' equal to $272,722.95. To this sum is to be added $1,365'.56 which wás assessed for the soldiers’ relief fund, and $54,444.59 which it might assess in highway taxes in addition to the one per centum limitation under sec. 83.06 (4). This makes the authorized [98]*98assessment of the county $328,533.10. The levy actually made of $344,501.84 was $15,968.74 in excess of that which the county was authorized to levy. The plaintiff will be entitled to recover its pro rata share of this amount.
By the Court. — Judgment reversed, and cause remanded with instructions to enter judgment in accordance with this opinion.
The following opinion was filed January 10, 1933: