I regret I am unable to concur with the majority in a decision of such importance. It involves legislation undoubtedly deemed by its proponents to be desirable in order to furnish assessing machinery in larger cities different from that used generally throughout the state. I have no knowledge of the conditions it was designed to correct, and, of course, no opinion as to the desirability of the object or the effectiveness of the remedy. *Page 718
We must start with two main propositions in mind: First, that the legislature is presumed to have kept within the limits set by the constitution and that it is our duty to uphold the act in case of doubt; but, second, that it is our paramount duty to uphold the constitution if the act offends, and to do this regardless of the consequences. It is not necessary to cite authority upon either of these elementary propositions.
Two constitutional provisions are involved. Section 30, ArticleIII, of the Iowa Constitution, expressly forbids local or special laws "for the assessment and collection of taxes"; section 6, Article I, requires that "All laws of a general nature shall have a uniform operation."
As this statute is, on its face, one "providing for the procedure for assessing real and personal property," it can be sustained, if at all, only as a "law of a general nature." It cannot exist as a "local or special" law.
Our inquiry narrows down, therefore, to just one question: Is chapter 202 of the Laws of the Forty-ninth General Assembly a law of a "general nature" having "uniform operation"? If not, it violates section 30 of Article III of the constitution. This inquiry, however, involves two considerations: First, whether the subject matter is such as to justify a classification based solely on population; and second, whether, assuming the basis of classification is proper, its provisions nevertheless make it a local or special law.
I. I am especially concerned with the second consideration. It may be conceded that the constitutional provision does not require that the law operate uniformly on all the people of the state, nor, when pertaining to cities, that it operate uniformly on all cities; nor even that if at a given time it operates only upon one city, it will still be general if so framed as to operate upon other cities as they come within the class of the future. I have no quarrel with the authorities cited by the majority opinion to this point.
But where the basis of classification is such that new members may come into existence the law must be so framed as to include them when they arrive. 59 C.J. 728, 731, section 318. "* * * the test being whether other municipalities from time to time may be included, or are permanently excluded." 59 C.J. *Page 719 760, section 353. These principles are not questioned by the parties here.
Was this act so framed? I think not. In fact, a plain reading of it, without reference to the language of the title, shows that the legislature had in mind but one city and was making no effort to adapt the legislation to other cities as they would enter the population class.
Section 1 of the act starts out with the words:
"Within thirty (30) days from the taking effect of this Act, in cities having more than one hundred twenty-five thousand (125,000) population, the city council, the school board and the county board of supervisors each shall appoint * * *."
This is just as definitely limited in application to the one city with more than 125,000 population existing when the act "took effect," as was the language in State ex rel. West v. City of Des Moines, 96 Iowa 521, 526, 65 N.W. 818, 820, 31 L.R.A. 186, 59 Am. St. Rep. 381, which said: "`all cities in this state, which had, by the state census of 1885, a population of thirty thousand or more.'" It cannot by any legerdemain be made to apply to cities "hereafter" having the necessary population. It is the one place in the entire act that defines the "cities" to be affected by its provisions. They must be those then existing or the machinery could not be started "within thirty (30) days from the taking effect of this Act."
State ex rel. West v. City of Des Moines, supra, is exactly in point, and in that case this court said, at page 527 of96 Iowa, page 820 of 65 N.W.:
"The act is singularly specific in this respect, not even permitting any chances as to what might be the actual population of other cities but making it dependent on the census return of 1885, known at the time the act was passed, which clearly proves that only the city of Des Moines was intended as the subject of such legislation."
With equal truth it may be said here that it was known when this act took effect that only the city of Des Moines could start within thirty days to put the machinery in motion.
Every succeeding section of the act of necessity refers to *Page 720 the cities able to comply with the requirement contained in section 1. Nowhere is there any mandate to "cities" generally of that population class or to any which might qualify.
The majority opinion quotes from State ex rel. West v. City of Des Moines, supra, this language, to distinguish it from the instant case:
"Had the act in question been made applicable to all cities of over thirty thousand inhabitants, without a qualification that, under known facts, would exclude its operation as to any other such city, the case would be different."
Instead of distinguishing it from, I think it clearlyidentifies it with this case. This act qualifies the classification by the words: "Within thirty (30) days from the taking effect of this Act." No other city of over 125,000 population is referred to.
Great reliance is placed upon State ex rel. Welsh v. Darling,216 Iowa 553, 246 N.W. 390, 88 A.L.R. 218. It is easily and clearly distinguishable. In the first place, the legislation considered in that case contained what is nowhere found here — an express enactment that "This act shall apply only to cities now or hereafter having a population of one hundred twenty-five thousand (125,000) or more." Acts of the Forty-fourth General Assembly, chapter 149, section 1. And, in the second place, the court, in the Darling case, found that the machinery provided for putting the law into effect could be adapted to cities qualifying later.
That cannot be said of the machinery set up by this act. It provides for term of office of the members of the examining board, of the assessor, and of the members of the board of review, with a particularity as to dates of commencement and termination that completely negatives the possibility of adapting it to any city not in the class when the act took effect. In no city except Des Moines could that machinery ever be set in motion.
Appellees tried to get around this difficulty by construing the words "from the taking effect of this Act" to mean from its "taking effect" in each city as such city comes within the classification. What I have already pointed out with regard to the machinery of the act completely answers that argument. *Page 721 It clearly shows that the words mean "when the Act becomes law" — in other words, "the effective date" of the act.
The language "the taking effect of this Act" has not been construed in any case cited by either appellants or appellees or in any case I have found, but it is no stranger to our law. Our constitution itself uses the expression "take effect" as referring to the time when an act of the General Assembly becomes law. Constitution of Iowa, section 26, Article III. The legislature uses it for the same purpose. Code sections 53 and 54. Appellees so construed it when they drew their motion to dismiss and said the act "is not a special or local law * * * being by its terms applicable to all cities which upon the effective date of the Act have a population of more than 125,000, and which thereafter come within the provisions of the Act by attaining" such population.
The same language appears in section 19 of the act in so unmistakable a connection that it seems to foreclose all argument as to meaning: "From the date of the taking effect of this act and until January 1, 1942, the expenses of the examining board * * * shall be paid by the county * * *."
The majority opinion refers to other cases where was involved legislation applicable to "all cities" of certain population specifications and in which the legislation was held to be general and not special, though Des Moines was the only city in the class. I have no criticism of such cases. It will be found in every case the language was broad enough to admit cities thereafter coming into the described class.
It is to be remembered there is no such unqualified language here in the act itself. The unqualified language "in cities of more than one hundred twenty-five thousand (125,000) population" occurs in the title of the act and again in section 20. But this court has said:
"It is only where the language of the statute is ambiguous or doubtful that the court may look to the preamble or title or heading to ascertain the legislative intent." State v. Linsig,178 Iowa 484, 488, 159 N.W. 995, 996.
*Page 722And in an earlier case the court said:
"It is the general rule in this country that where the meaning of the statute is doubtful, but in no other case, recourse may be had to the title for explanation, but it cannot be used to extend or limit the positive language of the statute." Lederer Strauss v. Colonial Inv. Co., 130 Iowa 157, 158, 106 N.W. 357, 358, 8 Ann. Cas. 317.
Is the language of this act doubtful? I think not. The opening language: "Within thirty (30) days from the taking effect of this Act, in cities having more than one hundred twenty-five thousand (125,000) population * * *" is direct and clear and every word of the statute thereafter fits perfectly into its meaning. There is not one suggestion that it was intended to legislate for any city later coming into the class and not one mandate that any city qualifying later be admitted.
In State v. Linsig, supra, the court says:
"It is not competent for the court to resort to forced or subtle reasoning for the purpose of either limiting or extending the effect of a statute."
The language is pertinent here. The act can never be put into effect in any city other than Des Moines without writing into it adjustments and meanings that the legislature did not see fit to write into it. This we should not do. Courts are and should be jealous not to invade the province of the legislature. Our duty is to construe, not to amend. We should not add provisions to the statute that are not already there either in express language or by reasonable implication. To do this, even in order to sustain the act, is itself an assumption of legislative power.
Applying this test, I am driven to the conclusion that the act in question is in violation of section 30, Article III of the constitution, and is not a law of a general nature having a uniform operation as required and defined by section 6, Article I.
For the reasons stated I am compelled to dissent from the opinion of the majority. I think the decision of the lower court should be reversed.
II. There remains the other consideration as to whether the subject matter of the act in question here is such as to justify *Page 723 the classification adopted. While willing to concede that a population classification might be upheld for some purposes connected with the assessment of property for taxation, I am convinced this statute does not reveal any such purpose. Accordingly, I join in the dissenting opinion of Justice Mulroney which is devoted to that branch of the case.
OLIVER, J., joins in Division I of this dissent.