I feel that I must dissent from the majority opinion in this case.
The question for determination here is whether, under said section, 278.1, Code of 1946, the voters have been given power by the legislature to authorize certification, levy and collection of the tax not to exceed two and one-half mills on the dollar for a period of more than one year. Plaintiff-appellee contends that the statute is intended to meet the usual annual needs of a school district. Defendant-appellant contends that the statute gives authority to build up a surplus or reserve in addition to the power in a school district to issue bonds when approved by the voters and that the tax may be levied for any reasonable number of years upon being approved by the voters at one election.
I. In the case of a tax statute, where the legislative intent or meaning is doubtful, such statute, unless a contrary intention appears, is to be construed against the government or the tax levying bodies and in favor of the taxpayer or citizen. Clark, Dodge Co. v. City of Davenport, 14 Iowa 494, 500; Curtis v. Michaelson, 206 Iowa 111, 118, 219 N.W. 49; Merchants Supply Co. v. Iowa Employment Sec. Comm., 235 Iowa 372,16 N.W.2d 572, and cases cited; 51 Am. Jur., Taxation, section 316; Gould v. Gould, 245 U.S. 151, 38 S. Ct. 53, 62 L. Ed. 211, 213; Moorman Mfg. Co. v. Iowa Unemployment Compensation Comm.,230 Iowa 123, 296 N.W. 791; Great Northern R. Co. v. Board of Supervisors, 197 Iowa 903, 196 N.W. 284.
II. Construing the statute as to the intent, we should bear in mind the principles of construction above stated. The statute is one subsection of section 278.1, which section relates to the powers of the voters at the annual March meeting. Except as therein stated, the general affairs of the district are usually administered by the directors. The power granted in subsection 7 is for revenue raising and seems to be intended to provide for the ordinary annual needs for the purposes enumerated, which will, of course, vary from year to year. When the ordinary methods of raising ordinary funds seem inadequate, in addition to *Page 239 levies for general funds, and other funds are necessary which will require taxes to be levied over a considerable period for school building needs, section 298.21, Code of 1946, provides for the issuance of bonds when authorized by the voters "at the regular election or at a special election called for that purpose." There is also a provision authorizing the board of directors to certify a tax of one mill, as well as a tax for general purposes.
The fund for general purposes and the fund for the purchase of building sites being thus provided for as above set out, it would not seem reasonable that another section would be necessary, running year after year as a permanent fund, like a fund raised by bonds, but rather a fund to be provided in case of need or where the regular annual funds were insufficient. Two Code provisions for the same purpose would hardly be the intent of the legislature, nor does it seem reasonable to believe that the legislature intended that the fund of two and one-half mills each year was to be used to create a surplus which could be drawn upon at will or for some contingency, at the time of levy unknown, and which fund might be voted at one time by the voters at any election regardless of the wishes of the voters at some future election. The electors in future elections — the taxpayers in subsequent years — have the right to determine at the time of the regular election the present needs of their schools and it is so provided by the subsection under consideration. The voters have this power at each regular election. It follows that under defendant's construction the voters would be deprived of the exercise of that power at the annual election in each subsequent year, and such power should not be taken away from them for a period of ten or more elections. Interpreted as argued by defendant, if the tax is voted for a longer period than one year it would be an attempt to tie the hands of the taxpayers at future elections, with no limit as to the number of future years. Burkhead v. Independent Sch. Dist., 107 Iowa 29, 77 N.W. 491, cited in Independent Sch. Dist. v. Pennington, 181 Iowa 933, 165 N.W. 209.
III. It is true that in the Burkhead case the statute referred to has since been modified, authorizing schoolteachers' contracts in certain cases for longer periods by express authority of statute, as now amended. However, the Pennington case quotes *Page 240 from the Burkhead case (page 937 of 181 Iowa) the following:
"`An examination of the statutes leads to the inevitable conclusion that the legislature intended such contracts to be limited in duration to the school year as determined by the board of directors. If not so limited, then the directors might employ teachers for any number of years, tie up the hands of their successors in office, and wrest from the control of the people the schools which they are required to support. The spirit of these statutes is repugnant to the idea that one board of directors, by contract wholly to be performed in the future, can divest future boards of the power to select teachers and make contracts therefor, and indirectly take from the people all the advantages to be derived from annual elections.'"
If true as to the board of directors it is equally true as to the electors at an annual election who are permitted to speak as to the matters enumerated in subsection 7 of section 278.1 only once each year.
Defendant argues that the tax may be levied under the statute for a reasonable number of years, but who will say what will constitute the number of years which shall be reasonable, and who can prophesy what may be the needs of the district for each future year? Such a construction is an invitation to future litigation, instead of being clear and decisive.
IV. It is argued as to the words "for a period of ten years", which do not appear in the statute but which were used in the ballot at the regular election, that since no such words were in the statute the legislature purposely intended to omit any period of time so that the period might be provided in the ballot at the discretion of the board of directors, asking the authority of the voters to levy the tax. Far from being such a discretion vested in the voters, it is more likely to be an omission purposely intended. Great, Northern R. Co. v. Board of Supervisors, supra. and cases cited.
The statute is silent. There is nothing to indicate the vesting of any discretion as to the years. By its silence it indicates that it was not intended that any additional period of years be allowed beyond the current year. We should not look beyond the words of the statute for any additional grant of authority. *Page 241 See In re Guardianship of Wiley, 239 Iowa 1225, 34 N.W.2d 593, and cases cited.
The district judge in the case at bar aptly said: "If the legislature had intended it [the tax] to be levied for a longer period than one year, it would certainly have been the simplest matter in the world to have stated so."
In the opinion of the district judge it is further said: "The legislature, by placing subsection (7) in the section it did — the section that enumerates the powers the electors have at the annual election — and by remaining silent as to the number of years the levy could be made, placed a limit of one year thereon. In other words, it granted all the powers it intended to grant." With this statement we agree. See Burkhead v. Independent School District, supra.
V. Defendant argues that the construction of the statute as it urges herein has been applied by a number of districts in the state, and in some cases has had departmental approval. This is probably true and we do not doubt that departmental practice may be considered, but such approval may not overcome what we consider the purpose and intent of the law. Of course there is no record of the very large number of districts that have made no attempt to apply it at all other than annually. The rule as to departmental approval is fully stated in the case of United States v. Dickson, 15 Pet. (U.S.) 141, 160, 10 L. Ed. 689, 697:
"It has been also argued, that the uniform construction given to the act of 1818, ever since its passage, by the treasury department, has been, that the act has reference to the fiscal year. The construction so given by the treasury department to any law affecting its arrangements and concerns, is certainly entitled to great respect. Still, however, if it is not in conformity to the true intendment and provisions of the law, it cannot be permitted to conclude the judgment of a court of justice. The construction given to the laws, by any department of the executive government, is necessarily ex parte, without the benefit of an opposing argument, in a suit where the very matter is in controversy."
See also Prudential Ins. Co. of America v. Green, 231 Iowa 1371, 2 N.W.2d 765, 141 A.L.R. 1401. *Page 242
VI. Defendant devotes considerable space to the recital of the reasons and motives for the imposition of the ten-year levy. There seems to be no reason why the motive should be considered. The power to issue bonds up to the legal limit is possessed by the district, and the grant by the legislature of the right to an annual tax of two and one-half mills is granted to the electors, but the powers of the district are limited by the legislative grant of authority.
VII. The construction argued by the defendant is adopted in the majority opinion. As noted herein, I cannot concur in the reasoning, nor do I think that the case cited sustains the view of the majority opinion. Therein cited is the case of Ruff v. Womack, 174 Ark. 971, 298 S.W. 222. In considering the meaning of a constitutional provision it is argued that a provision of the constitution authorizing a school district to levy by a vote of the qualified electors of such district a tax not to exceed eighteen mills on the dollar in any one year for the maintenance of schools, that this was no prohibition against the legislature authorizing the electors to vote a continuing levy, but the tax in the Arkansas case was a different form of tax. It constituted a general school tax which would naturally continue from year to year until changed. The difference is that the present tax under consideration seems to be an emergency tax and not, I think, to be intended to be a continuing general tax. Otherwise, the legislature would have said so.
The construction of section 278.1 should be construed in connection with other sections and chapters as to school purposes, notably chapters 296, 297 and 298. Chapter 296 requires an election before an indebtedness may be incurred in excess of one and one-fourth per cent of the assessed value of the taxable value of the property within the corporation, for buildings and sites of schoolhouses, and for issuing bonds for financing same.
Chapters 297 and 298 have extended provisions and safeguards for acquisition of sites and the building and repairing of schoolhouses, and the manner of financing such projects. These chapters are clearly designed to provide for financing over periods of time greater than one year, but section 278.1 seems intended on the other hand for current matters, including provision in paragraph 7 for any unusual current financial needs *Page 243 for schoolhouse purpose. To construe section 278.1(7) as intended by the majority opinion and as argued by defendant would result in permitting the board to build up a fund over a period of years to be used for some future and unknown, or at least unrevealed, schoolhouse purpose, and to avoid the safeguard these other sections provide before such purposes can be carried out.
I am satisfied that the words "in any one year" limit the power of the voters in any one year, and that they do not have the effect of permitting a grant of power to levy an annual tax over a period of years. A levy of such annual tax would not require such language since the annual levy would, of course, be the same each year.
I am unable to agree with the views of the majority in the construction of section 278.1(7).
SMITH, MANTZ, and WENNERSTRUM, JJ., join in this dissent.