ON REHEARING The Supreme Court held that a published notice of a special election of a second class school district, called for the purpose of voting on a proposal to increase the tax levy against property situated within the school district in excess of constitutional limitations complied with statutory requirements for elections of school districts of the second class, and that the levy was valid.
Former opinion modified and decree affirmed. We granted a rehearing in this case because of doubts whether § 111-906, O.C.L.A., on which our decision was largely based, was applicable to the factual situation here presented. Other questions raised on this appeal, and discussed in our former opinion, will not again be considered as they are not involved in this rehearing and we are of the opinion that our determination thereof should not be changed.
The "local budget law", enacted as chapter 118, General Laws of Oregon, 1921, and, with amendments thereto, codified as §§ 110-1201 to and including 110-1215, O.C.L.A., is referred to by counsel for the first time in the petition for a rehearing. However, one section thereof, § 110-1207, O.C.L.A., as amended, was discussed in our opinion. We think that the provisions of that act are pertinent to the discussion whether § 111-906,supra, governs the contents of the notice which is required to be given in an election such as the one here in question.
Before proceeding with a discussion of the budget act, it should be noted that the election, which was declared invalid in our former opinion, was, as stated in the notice of such election, "for the purpose of submitting to the legal voters of said district the *Page 62 question of increasing the tax levy for the fiscal year 1949-1950 over the amount limited by section 11, Article XI, of the Constitution of Oregon." We held that the notice of such election failed to comply with § 111-906, supra, in that it did not "contain an itemized budget showing the contemplated expenditures" of the additional fund sought to be raised by the proposed increased tax levy.
Section 111-906 was first enacted in 1901 (Laws, 1901, p. 41, §§ 43, 44) and has been amended several times, the last amendment being in 1919 (Laws, 1919, Ch. 106), which was prior to the enactment of the budget law.
We shall now consider some of the provisions of the budget law. Section 110-1202 thereof provides in part as follows:
"For the purpose of this act and unless otherwise required by the context:
"(a) The words `municipal corporation' mean the county, and any city, town, port, school district, union high school district, water district, dock commission and all other public or quasi public corporations that have the power to levy a tax upon property, except school districts of the third class, * * *.
"(b) The words `levying board' mean the common council, board of commissioners, board of directors, county court or other managing board of the county, or of any city, town, port, school district, union high school district, irrigation district, water district, dock commission and of all other public or quasi public corporations that have power to levy a tax upon property."
All municipal corporations, as above defined, are required, before levying any tax, to prepare an itemized budget of estimated receipts and expenditures, a summary *Page 63 of indebtedness, and the estimated tax proposed to be levied. §§ 110-1203, to and including 110-1206, O.C.L.A.
Section 110-1207, O.C.L.A., as amended by chapter 356, Oregon Laws 1941, and as further amended by chapter 393, Oregon Laws 1943, provides in part as follows:
"The classified summary of the estimates required by this act and a summary of the estimates for the current year and the expenditures for each of the two fiscal periods next preceding the current year, and a full and complete classified summary of the indebtedness of said municipal corporation specifying the general nature of said indebtedness, such as bonds, warrants, etc., together with a notice of the time and place at which said estimates may be discussed with the levying board, shall be published in the manner provided in this act at least twice prior to the time appointed for such proposed meeting in a newspaper of general circulation published in the municipal corporation; provided, that the first publication shall be not less than 20 days nor the second publication less than 10 days prior to the date of such meeting; provided further, that in case no newspaper of general circulation shall be published in the municipal corporation, then the notices and estimates required by this act shall be posted in three conspicuous places in the municipal corporation for at least 20 days prior to such meeting; * * *" (Italics supplied.)
Section 110-1209, O.C.L.A., as amended by chapter 73, Oregon Laws 1943, reads in part as follows:
"When the hearing provided for in this act shall have been held, or if at the time and place appointed for such hearing no taxpayer shall appear to discuss the proposed levy, then the levying board shall proceed to make, determine and declare the amount of taxes to be levied upon the current *Page 64 assessment and tax roll and to make a separate appropriation for each office or officer, department, building, structure, institution, bridge, road, highway, street, public utility or other purpose as shall be sufficient to raise the amount of taxes so determined and declared, and such determination shall be entered in the proper records of the levying board; * * *" (Italics supplied.)
In enacting the local budget law the legislature intended to and did impose upon the board of directors of school districts of the first and second classes the duty of levying taxes for their districts. School districts of the third class do not come within the provisions of the act. The defendant school district is a district of the second class.
Pursuant to the provisions of this budget act the defendant school district is required to prepare an itemized budget of estimated receipts and expenditures and to publish it "together with a notice of the time and place at which said estimates may be discussed with the levying board". After the hearing on the budget provided for by the act "shall have been held, or if at the time and place appointed for such hearing no taxpayer shall appear to discuss the proposed levy", the levying board of the school district is, under the provisions of § 110-1209, O.C.L.A., as amended by chapter 73, Oregon Laws 1943, required "to make, determine and declare the amount of taxes to be levied * * *." The authority thus conferred on school boards to levy taxes was curtailed by a later enactment to which we shall now refer.
In our former opinion we directed attention to chapter 345, Oregon Laws 1945, known as the rural school district law, which was by the 1945 legislature referred to the voters of the state of Oregon and was approved *Page 65 by them. In that opinion we quoted §§ 12 and 13 of chapter 345, as amended by §§ 9 and 10 respectively of chapter 591, Oregon Laws 1947. Under the provisions of § 13 of that act, as amended, "the responsible officer of" the school district is required immediately "following a public meeting as provided by law on the budget" to "deliver or transmit said budget to the rural school board."
Section 12 of the rural district school law, as amended, provides that after January 1, 1948, "all powers and duties to levy taxes, heretofore by law vested in and imposed on any school district or school unit embraced within the rural school district of any county, or heretofore vested in and imposed on the board of directors or other governing body of any such school district or school unit, hereby are transferred to, vested in and imposed on the rural school board of such county", provided, however, that each school district embraced within the rural school district of such county, or the governing body thereof, "shall retain and exercise the power to levy a tax" for payment of principal and interest of bonded indebtedness, or indebtedness evidenced by negotiable interest-bearing warrants, "and also to levy a tax for payment of capital expenditures and current expenditures not provided for in the budget of the district by the rural school board but which have been specifically authorized by the legal voters of such district or unit as outside the limitation of section 11, article XI, Oregon constitution."
The assailed election was called by the board of directors of defendant school district to procure specific authorization by the legal voters of the district to levy a tax for $10,980.00 for items of estimated *Page 66 expenditures that had been eliminated by the rural school board from the budget which had been approved by the defendant school district. Items thus eliminated are referred to in § 12, as amended, of the rural school district act, "as outside the limitation of section 11, article XI, Oregon constitution."
Section 11, article XI, Oregon constitution, known as the six per cent constitutional limitation amendment, was enacted in 1916. At the next session of the legislature, chapter 150, General Laws of Oregon, 1917, codified as §§ 110-1101 to and including 110-1112, O.C.L.A., was enacted "To provide for elections upon the question of increasing tax levies over the amounts otherwise limited by the Constitution * * *." Section 110-1109 of that act refers to school districts and provides that the "certificates upon the question of increasing the tax levy and fixing the date of the election shall be made by the board of directors and notice of such election given by the school district clerk in the same manner as other elections are called by such districts, which notice shall be given and published for not less than twenty days prior to the date of the election."
Section 111-908, O.C.L.A., as amended by chapter 228, Oregon Laws 1945, provides the manner in which notice of annual and special school meetings or elections shall be given. Said section reads as follows:
"The clerk of any school district in which a newspaper is published shall publish a notice of each annual and each special school meeting or election in one or more of the newspapers published in said district and having a general circulation in the district, such publication to be once a week for two successive weeks immediately preceding *Page 67 such meeting, and in case no such newspaper is published in the district, the clerk shall post said notice on the door of the schoolhouse and in two other public places in such district for at least 10 days immediately preceding such meeting; provided, that any school meeting called for the purpose of a hearing on the school budget, or for levying any school tax, the notices of meeting and the publication of the budget shall be governed by the provisions of the local budget law in section 110-1207 except in districts of the third class which shall follow the provisions of sections 111-906 and 111-909, * * *." (Italics supplied.)
In our opinion the language of the section just quoted clearly shows that the legislature intended to limit the application of the provisions of § 111-906, O.C.L.A., to school districts of the third class, which are not subject to the local budget law. Consequently we were in error in holding that the provisions of that section applied to the defendant school district, a district of the second class. Whether § 111-906 has any application to elections in districts of the third class on the question of increasing the tax levy for any fiscal year over the amount limited by § 11, article XI of the constitution is not before us for determination and we therefore express no opinion thereon.
In determining the question of the sufficiency of the election notice, we should not overlook the provisions of § 110-1112, O.C.L.A. That section provides that, in an election on the question of increasing a tax levy beyond the constitutional limitation, the ballot shall include a statement "of the reason for increasing such levy", and if no ballot is used "the oral statement of the question as shown by the records of such elections or the meetings at which they are held shall be sufficient." After carefully considering *Page 68 the entire record before us, we are of the opinion that the notice of the contested election was in full compliance with the provisions of § 110-1109, as amended, § 110-1112, and § 111-908, as amended, which are controlling here.
Several of the sections which we have referred to herein were amended by the 1949 legislature. Inasmuch as those amendments did not become effective until after the election here involved and would have no effect on the validity thereof, we have not specifically referred to them.
Our former opinion herein is modified, as hereinbefore pointed out, and the decree appealed from is in all respects affirmed. Neither party to recover costs in this court. *Page 69