[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 48 Three separate actions were instituted by the respective appellants, named in the caption hereof, for the recovery of taxes paid to Shoshone county under protest. The taxes were exacted and collected under the provisions of sec. 32-406, as amended by chap. 249, 1939 Sess. Laws, p. 612. The statute as amended is as follows:
"Section 32-406. TAX LEVY — CERTIFICATION — LIMIT — COLLECTION — SPECIAL FUND. . . . Whenever any school districtshall lapse under the provisions of Section 32-327, Idaho CodeAnnotated, the County Superintendent of Public Instructionshall, until the entry of the order annexing the territoryembraced in said school district to an adjacent or contiguousorganized school district under the provisions of Section I ofthis act, on or before the first day of September . . . . of each year, certify to the clerk of the Board of County Commissioners the amount of money which, when augmented . . . .by the estimated proceeds of any apportionment of general school funds to accrue thereto during the ensuing year, will be sufficient to pay, to districts entitled thereto, tuition of all persons of school age residing in such unorganized orlapsed district, as estimated by . . . . said County Superintendent of Public Instruction, and thereafter . . . . the Board of County Commissioners, at the time of making theannual county levy, shall levy, in addition to the levyprovided for in Section 32-328, Idaho Code Annotated, upon all taxable property in such unorganized or lapsed *Page 50 district, not exempt from taxation, a tax sufficient to pay such estimated claims, which tax shall be certified to the County Auditor as other tax levies are certified, extended on the tax rolls of the county against property in suchunorganized or lapsed district, and collected as other property taxes are collected. The proceeds of such tax levy shall be placed in the treasury of such county in a special fund to be known as 'Unorganized or Lapsed School District No. _____ Fund.' However, in no event shall the Board of CountyCommissioners each year make a levy under the provisions ofthis section of less than three mills, and whenever theproceeds of such tax levy is in excess of an amount sufficientto pay all tuition claims against such fund, the balanceremaining in said fund after the payment thereof shall beplaced by the County Treasurer in the 'County School Fund.'"
The italicized portion of the statute quoted constitutes thenew, changed, and added matter, in the amendatory section, that was not in the original section as found in the annotated code of 1932.
The plaintiffs paid the tax exacted under protest and these actions were subsequently instituted to recover the amounts paid.
Demurrers were sustained to the several complaints and the plaintiffs declined to further plead; judgments were entered in favor of the county.
It is urged by the appellants, in the outset, that the county commissioners never acquired jurisdiction to levy the tax, for the reason, as alleged by the complaints, that the several preliminary steps required by the statute, as conditions precedent to the levy of the tax, were never performed. To this contention, respondents say: "it must here be further admitted that the levy is sustainable only as the mandatory levy required by the last sentence in Section 32-406, as amended." The part of that sentence material to this issue reads: "However, in no event shall the Board of County Commissioners each year make a levy under the provisions of this section of less than three mills." If this statute is valid, it would seem to follow, from the language used, and the admissions of counsel, that the performance of the preliminary steps prescribed would be merely directory and not mandatory, to the *Page 51 limit at least of the minimum 3-mill levy prescribed by the act. The view we take, of other aspects of the case, renders it unnecessary for us to further consider this contention.
The two principal grounds urged for a reversal of the judgments are:
(1) That, since there were no children of school age within the unorganized territory, there existed no necessity and no legal cause for levying a special tax, under sec. 32-406, I. C. A., as amended by chap. 249, Sess. Laws 1939;
(2) That certain provisions of sec. 32-406, I. C. A., as amended by chap. 249, Sess. Laws 1939, are unconstitutional and void, because of being in conflict with secs. 5 and 6, Art. VII of the Constitution.
Addressing ourselves to the first objection, we are reminded that, in construing statutes, we should assume that the legislature intended to enact a valid and constitutional law and for that reason should give the act as favorable interpretation as possible. (In re Gale, 14 Idaho 761,95 P. 679; Grice v. Clearwater Timber Co., 20 Idaho 70, 77,117 P. 112; Continental Life Ins., etc. Co. v. Hattabaugh, 21 Idaho 285,304, 121 P. 81; Geo. B. Wallace, Inc., v. Pfost,57 Idaho 279, 292, 65 P.2d 725; Robinson v. Enking, 58 Idaho 24,27, 69 P.2d 603.) We must then assume, that the purpose of providing for the levy of this special tax on "unorganized school districts" was to provide revenue for payment of tuition for children of school age residing in the district. That the legislature so intended, is emphasized by sec. 32-408, I. C. A., as amended by chap. 249, 1939 Sess. Laws, p. 614, which provides as follows:
"No moneys shall be drawn or paid out of any unorganizedor lapsed school district fund for any other purpose than the payment of the tuition chargeable against persons residing in such unorganized or lapsed district except for the purpose of refunding excessive or illegal taxes, or rectifying errors in accounting, or paid into the County School Fund as provided inSection 32-406 as amended by this act."
Now it stands admitted, that there are no children *Page 52 of school age within this unorganized district and no outstanding claims. It must necessarily follow, that if the object or purpose of the tax never arises, then the grounds for levying the tax must fail. The people can not be taxed except for a lawful purpose. Here there is no lawful purpose; therefore no lawful tax.
This brings us to the second ground urged for reversal of the judgment. It appears that the legislature, at its 1939 session, was not content to leave the levying of a special tax, in unorganized districts for school purposes, to the county commissioners, as trustees of the district, but arrogated to itself the power to declare the levy of such a tax, up to 3-mills, compulsory and mandatory irrespective of the number of school children or the absolute lack of any children; and after arbitrarily levying a 3-mill tax in such districts, regardless of any necessity therefor, provided for turning the tax money so raised over to the county at large, to be placed in the county treasury to the credit of the "County School Fund"; (last sentence, sec. 32-406, as amended).
The amendment carries on its face two patent vices: First, the legislature; in violation of sec. 5, art. VII of the constitution, has attempted to levy a special tax onunorganized school districts only without extending such tax to all of the "same class of subjects within the territorial limits, of the authority levying the tax." (Idaho County v.Fenn Highway District, 43 Idaho 233, 253 P. 377.) Under this amended statute, (chap. 249, 1939 Sess. Laws) the legislature has attempted to also authorize the county commissioners, astrustees of the unorganized school district, to raise thelegislative levy above three mills on the property within theunorganized district; and to turn the money received therefrom into the general "County School Fund," for county purposes, contrary to the prohibition of the constitution and the authority of the Fenn Highway case above cited.
Sec. 32-702 (amended, 1939 Sess. Laws, chap. 241, p. 582), provides for the annual meeting in common and joint common school districts, and for the determination of the amount of taxes to be raised by special levy; and these, of course, may differ in different districts. Sec. *Page 53 61-806, I. C. A., provides for the levy by the board of county commissioners for "tax for general school purposes." The tax levy, by the county commissioners, must be uniform on all the taxable property throughout the county; whereas, the tax levied by the school districts is only required to be uniform on all the taxable property within the particular district making the levy.
In Idaho County v. Fenn Highway District, 43 Idaho 233, 240,253 P. 377, this court, after quoting from sec. 5, art. 7 of the constitution, said:
"This, in effect, requires that if a tax is to be levied by a county, it shall be uniform upon the same class of subjects within the county. Thus, if there is any ground for the interest of a county in the spending of the money, it must be a county purpose to authorize the levy, and the levy must be uniform throughout the county. . . .
"Counties are recognized by the constitution as subdivisions of the state, taxing units for raising money for county purposes, and if money is so raised by a county by a tax levy, it must be a county tax. To hold that a county may be given the right to levy a tax for a purpose is to concede that that purpose is a benefit to the county at large rather than to a district alone. If that is the case, then the principle protected by the constitution is that such tax shall be uniform, and no subterfuge can accomplish the division of such levy in any other way."
The Humbird Lumber Co. v. Kootenai County case, 10 Idaho 490,79 P. 396, is not thought to be in point here. The present case differs from that case in this: There the tax was levied on all the taxable property situated "within the territorial limits of the authority levying the tax"; whereas, here the tax is levied only "upon all taxable property in such unorganized school district." The tax is levied by the legislature up to three mills and any increase above the 3-mill levy is made by the county commissioners. So, it is readily seen that, under this statute, the tax is not "uniform" upon all the property "within the territorial limits of the authority levying the tax."
The fact that the several organized school districts of the county may each levy a special school tax (sec. 32-702, as amended by chap. 241, 1939 Sess. L., p. *Page 54 582, and sec. 61-806, I. C. A.) affords no reason or authority for the legislature levying a special tax on the severalunorganized school districts throughout the state; nor does it afford reason or authority for the county commissioners levying a special tax on the property within an unorganized districtfor the benefit of the whole county, when it is admitted that it will not be a benefit or useful to anybody or property within the territory taxed.
The judgments are reversed and the causes are remanded, with direction to overrule the demurrers and take further proceedings in accordance with the views here expressed. Costs to appellants.
Budge, C. J., and Holden, J., concur.