It is contended that we erred in giving liberal construction to the statutory language "obligations and needs" and "payments accruing." The argument is that taxation and revenue laws must be strictly construed; that a tax is not to be sustained unless the legal right to impose it is expressed in or clearly to be implied from the statute; that the board of trustees, in order to provide funds to carry on the business of the district, has been vested with the power of taxation; the revenue laws of the state "for the assessment, levying and collecton of taxes on real estate for county purposes" having been made applicable. Laws 1919, c. 20, § 25.
We do not think that this is the real principle here involved. The power to impose the tax is not in question. It is apparent and conceded. The question is whether it should be levied in 1927 or postponed until 1928. Shall the board be compelled to take advantage of a credit it now enjoys, or may it pay as it goes? This is not a question of taxing power and does not involve construction of a revenue law. It involves the corporate powers. Considering those powers, as specified in the statute, and considering the purposes of the act and the nature of the business placed in charge of the board of directors, we cannot doubt that the question stated is one of policy, committed by the Legislature to the discretion of the board; nor do we think that we construed the statutory phrase with too great liberality.
We have no doubt of the correctness of appellants' contention that the "obligations and needs" to be included in the budget are limited to those of the "ensuing year." We quite agree that the board is not given the power to accumulate a surplus. But we cannot regard as a surplus that which is actually owed and is payable on demand. *Page 497
Appellants urged at the original hearing, and again urge, that, if the $205,000, estimated cost of operation and maintenance for 1928, be omitted from consideration, the cash on hand and the estimated resources would suffice for 1928 needs and obligations without a tax levy. Not having adopted the hypothesis, we could see no reason to consider the resulting conclusion; nor do we now. Including the disputed item, it is not to be doubted that a levy is required. It does appear, however, from a finding made, that the board's estimate of cash on hand December 31, 1927, was about $10,000 too low. On the other hand, the budget was made to balance by including on the "source of revenue" side some $70,000 of delinquent assessment and some $4,800 of fixed assets. The latter were clearly not sources of revenue, and the former only to the extent that there was a reasonable prospect of realizing upon them during the year. We do not feel justified, therefore, in modifying the judgment on account of the error as to available cash.
Appellants contend that the record shows that, as to the general fund, the cash on hand and sources of revenue were sufficient to meet the needs and obligations without any tax levy, even though the $8,200 turned over from the permanent reservoir for irrigation purposes and the improvement of Rio Grande trust funds be excluded. The evidence does not, in our judgment, sustain this contention. After carefully reconsidering the evidence and the findings, we still think that the necessity of a tax levy for the general fund depends upon whether the moneys just mentioned and the $10,000 reserved for building purposes are to be treated as available cash. We held that they were not.
It is now urged that, as to the building reserve, we were wrong; that to allow such a fund to be accumulated from year to year is merely to permit the building up of a surplus. The corporate power of the district to acquire or erect a building for its purposes is not questioned. Whether it may pay the cost thereof, or accumulate a reserve therefor, out of the general fund, must be determined according as we interpret Laws of 1921, c. 39, § 3. This is the pertinent language: *Page 498
"Item four. Current and miscellaneous expenses, other than as above specified, and necessary to defray the expenses of maintaining the organization of the district and carrying out the purposes of this act, shall not aggregate more than twenty cents per acre."
[4] The acquirement or erection of a building is not a current expense. It might be contended that it is an investment of capital. Is it a miscellaneous expense? If not properly an expense of any kind, is it justified as carrying out a purpose of the act? If we were to hold with appellants on this point, it would not result in sustaining their contention that no levy was required. It would, however, render a smaller levy sufficient. The specific question was not called to the attention of the trial court by requested findings or conclusions, and was not directly ruled upon. We do not consider that the question has been exhausted, by any means, in the briefs and arguments submitted to us. The question is of minor importance, considering the much larger amounts involved in this case, and the importance of a speedy determination of the main question as to whether the present levies may stand. For these reasons, we have concluded that it would be better to reserve the question for further determination. We overrule that objection for the purposes of this decision only. Our former expression as to the board's power to create the building reserve is withdrawn.
The motion for rehearing will therefore be denied. The former disposition of the cause is adhered to. The former opinion is adhered to, except as herein modified.
BICKLEY, J., Concurs.
PARKER, C.J., dissents.