Hilburn v. St. Paul, M. & M. Railway Co.

ON MOTION FOE EEHEAE1NG.

PER CURIAM

__Counsel for plaintiff, in his motion for rehearing herein, while admitting that he has no substantial ground upon which to base the application, insists that the importance of the question involved is alone sufficient to justify a re-examination of the case. At the time the original opinion was handed down, we were fully aware of the importance of the case, and of the probably disastrous consequences of the conclusion reached therein to many of the school districts throughout the state. Yet, when confronted with the necessity of a choice between declaring the sections of the statute in question invalid and assuming the functions of the legislature, there was but one course left to us. We could find no other legitimate solution of the matter. Nor are we now, after a further examination of the statute itself and the authorities cited by counsel, able to announce a different conclusion.

1. It is admitted that under the provisions of Section 1940b, Political Code, touching the submission of the question of a tax to the voters of the district, no sum can be voted. But it is urged that by substituting for the words ‘ ‘the sum voted, ’ ’ in the latter part of the section, in the provision directing the trustees how to determine the rate, the words ‘ ‘the sum mentioned in the notice,” one of the difficulties in executing the statute will disappear. In support of this suggestion the rule is invoked that, where it is manifest upon the face of an act that an error has been made in the use of words, the court may correct the error, and read the statute as corrected, in order to give effect to the obvious intent of the legislature. It is not uncommon for the courts, in construing statutes, where it is manifest that error has been committed, to make the correction necessary to give them effect. One word or phrase may be read for another. (Haney v. State, 34 Ark. *246263; People ex rel. Escott v. Hoffman, 97 Ill. 234; Moody v. Stephenson, 1 Minn. 401 (Gil. 289); Burch v. Newbury, 10 N Y. 374; Lancaster Co. v. Frey, 128 Pa. St. 593, 18 Atl. 478.) Words, phrases and clauses may be expanded or restricted in their meaning (Suth. St. Const. Secs. 218, 246) so as to carry out the obvious intent of the legislature. The obvious sense in which words are intended to be understood, and not their abstract force, is to'be followed. (Id.) Words and phrases may be omitted. (U. S. v. Stern, 5 Blatchf. 512, s. c. 27 Fed. Cases, 1310; State v. Acuff, 6 Mo. 55; State v. Beasley, 5 Mo, 91.) An erroneous description may be corrected. (Lindsley v. Williams, 20 N. J. Eq. 93; Palms v. Shawano Co., 61 Wis. 211, 21 N. W. 77; State ex rel. Agricultural Society v. Timme, 56 Wis. 423, 14 N. W. 604.) Phrases may be transposed in order that the sentence may be read in its obvious sense, and attributive words be applied to the proper object. (Babcock v. Goodrich, 47 Cal. 488; Matthews v. Commonwealth, 18 Grat. (Va.) 989.) So the court will adopt any other method to make the law effective, provided the context furnishes the real intent of it, and‘it is not necessary to add substance to it to make it effective. It may look, also, to statutes in pari materia. (Suth. St. Const. Secs. 283-285.) But it must be understood that these rules apply only to cases where the intention is manifest from the context and provisions in pari materia, and always with the limitation that, after the correction is made, the means of executing the law are provided for. The court will not add substance where there is no substance, nor will it provide means where the law provided none. And we apprehend that no authority can be found to sustain a court in reading such a change into a statute as that the effect will be to abrogate a specific provision made therein.

We do not think the suggestion made by counsel will avoid the difficulty. The aim of the provision fixing the form of question to be submitted and the ballot to be used is to have the voter authorize the tax, and at the same time to impose a limit upon the burden to be borne for any one year. Can it *247be said that when a voter has consented to be taxed specially within certain limits he has consented to the raising of a sum already fixed by the board without reference to a limit, and which the board was not authorized to fix ? Or, after he has been notified that he may vote for the sum mentioned in the notice, and undertakes to do so, can he do it by using the prescribed form of ballot ? Who is to say that he intended to vote for the sum named in the notice when he does not say so himself. If the suggestion made by counsel can be adopted, why not adopt an expedient more convenient and effective, and make the prescribed form of the ballot read: “Shall a tax of-dollars be raised to furnish” etc? Yet counsel would not contend that this would be lawful. Nor would he contend that it would be lawful for the trustees to fix a sum, instead of using the rate limit, in their preliminary resolution. It is the rule, particularly in regard to special taxes, that the various steps provided by law to be taken in laying them must be observed. “The municipal corporations of a state, having no inherent power to tax, must take such power as is conferred under the conditions and limitations that may be prescribed, and only for such purposes as may be expressed. This is fundamental. ” (Cooley on Taxation, 329.) The record of the proceedings must show that the provisions of the law have been complied with. “Every essential proceeding in the course of a levy of taxes must appear in some written and permanent form in the record of the bodies authorized to act upon them. Such a thing as a parol levy of taxes is not legally possible under the laws. ” (Cooley on Taxation, 339; Moser v. White, 29 Mich. 59; Farrar v. Fessenden, 39 N. H. 268.)

The fundamental idea of the section under consideration is that the voter must give his consent to a tax limited by bounds over which the trustees cannot step even with the voter’s consent. After a suitable resolution has been passed by the board, the notice is given, the vote taken, and the record made up. From the record it does not appear that the voter has consented to the tax contemplated by the notice. It *248does appear that tie has consented that the board may levy a tax not to exceed 10 mills on the dollar, and yet the law leaves no option to the trustees to act upon this «theory, but enjoins upon them the duty to proceed to find out the rate by another process, in which their discretion has no place. If it happens to exceed the rate limit, it must still be the rate. They cannot change it. In the meanwhile they are presuming, without any evidence before them to establish the tact, that the voters have consented to what they do.

In our opinion, it is impossible to observe the requirements of the statute, under the rules of construction applicable to it, without making a substantial amendment to it sufficient to carry out one or the other of the theories contemplated by its inconsistent provisions.

2. But, even if we agree with counsel as to the proposed change in the reading of section 19+0b, what disposition shall we make of the difficulty touching the tax roll? Section 19+1 is a part of the old act, but, reading it in connection with 19+0b, it is perfectly apparent that the tax rate, however it may be fixed, is levied upon the roll as equalized by the board. As we showed in the original opinion, this roll must be based upon the valuations of the previous year, and there is no authority of law, either in the title relating to revenue or in that, relating to education, to use this roll. In fact, it contravenes the express provisions of the former in this respect, and under the rule of construction laid down by the legislature, itself (Political Code, Section 5162) these must prevail where there is a conflict with other titles. Counsel seeks to avoid this difficulty, however, by invoking other rules of construction, viz: ‘‘That the contemporaneous and long-continued practice of officers required to execute or take special cognizance of a statute is strong evidence of its true meaning, ’ ’ and that ‘ ‘if the legislature, by its inaction, has long sanctioned a certain construction, language apparently unambiguous may be given by the court such construction, especially if the usage has been public and authoritative,” — citing, among other authorities: 23 Am. & Eng. Enc. Law, 340, *249342, and notes; Rogers v. Goodwin, 2 Mass. 477; U. S. v. Moore, 95 U. S. 763; People ex rel. Escott v. Hoffman, 97 Ill. 234; Scanlan v. Childs, 33 Wis. 663; The Laura, 114 U. S. 411, 5 Sup. Ct. 881; U. S. v. Hill, 120 U. S. 169, 7 Sup. Ct. 510. Under these authorities counsel argues that in view of the inveterate construction which the county treasurers throughout the state must have given to this feature of the act, and especially in view of the acquiescence therein of the legislature, this court should allow it to stand. While the old act stood for many years upon our statute books, it was essentially different from the law as passed in 1895 and amended in 1897. This difference was pointed out in the original opinion. Prior to 1895, the power of the voter was unlimited in consenting to the laying of special school taxes. In the act thus amended a limit was imposed upon this power. Moreover, there was no express provision in the revenue laws touching the basis of taxation, and the legislature had not, prior to that time, laid down the rule of construction to be applied. While, in favor of vested rights and really inveterate practice and procedure, we should be strongly inclined to yield to the argximentum ab convenienti, we cannot consider it in face of the conditions here presented. The authorities cited are only applicable in a condition of things where vested rights have been acquired, and where for many years the construction insisted upon has been the rule of action, and to disturb it would be to work great public and private injury, and inconvenience. Under the act before us and the other provisions of law to 'which we must also look, the practice has not become inveterate. This tax was levied for the year 1897,— within two years of the date of the passage of the act. Its terms are not, apparently, unambiguous. They are both ambiguous and conflicting with each other and with other provisions of law which they cannot be held to amend or repeal.

The motion for a rehearing is denied.

Denied.