concurring in part and concurring in result in part:
I concur in that portion of the majority opinion discussing the appellant’s claim for a tax refund. However, I disagree with the majority’s analysis affirming the dis*811trict court’s denial of the appellant’s prayer for declaratory judgment which sought a determination that the county’s practice of not reducing tax levies to take into account the availability of county surplus funds at the end of the fiscal year was in violation of I.C. § 31-1605. I believe that at the time this case was before the district court the district court erred in dismissing this declaratory judgment claim. However, I concur in the result of the majority only because the legislature has since mooted this question by amendment of that section and the enactment of a new section, I.C. § 31-1605A, which together authorize the county to carry surpluses forward from one year to the next in order to operate upon a cash basis.
I.C. § 10-1202, § 2 of the Uniform Declaratory Judgment Act, provides:
“10-1202. Person interested .or affected may have declaration. — Any person whose rights, status or other legal relations are affected by a statute . may have determined any question of construction or validity arising under the . . . statute and obtain a declaration of rights, status or other legal relations thereunder.”
In its complaint V-l Oil alleged that it paid taxes in Bannock County and that in 1974 the Bannock County Commissioners had set the budget without reducing their total tax levy by the amount of the surplus the county had carried forward from the previous year, i. e., the county would carry a surplus forward from one year to the next. The appellant asked for a declaratory judgment whether this was in violation of I.C. § 31-1605, which then provided in part:
“[T]he board of county commissioners shall fix the levies necessary to raise the amount of expenditures as determined by the adopted budget, less the total estimated revenues from sources other than taxation, including available surplus, .” (Emphasis added).
The appellant’s rights as a taxpayer, and the rights of every other taxpayer in Bannock County, were affected by the legality of the commissioners’ practice of carrying a surplus forward from one year to the next rather than lowering or eliminating taxes until the surplus was expended. I.C. § 10-1202 clearly gives any taxpayer the right to determine the legality of that practice. The statute having conferred this right upon the taxpayer, it cannot be lost because the taxpayer has joined his declaratory judgment action with a claim for a tax refund upon which relief cannot be granted because the taxpayer has failed to exhaust his administrative remedies.
The majority characterizes this action for declaratory judgment as a collateral attack upon the tax assessment of V-l’s property. It is not. The declaratory judgment count did not ask for a tax refund; it merely asked for a declaration whether the county commissioners had adopted the 1974 budget in violation of statute. So long as the statutes remained unchanged, the question of whether the budget had been adopted in violation of statute was a recurring one and should have been decided. The majority says, however, that the district court had discretion to dismiss a declaratory judgment count, apparently upon the basis that the appellant alleged no harm or damage in the future. The is contrary to the clear mandate of statute. I.C. § 10-1201, § 1 of the Uniform Declaratory Judgment Act, provides in part:
“10-1201. Declaratory judgments authorized— . . . Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. .” (Emphasis added).
This section does not give the district court discretion to refuse to hear a prayer for declaratory relief on the ground that the plaintiff has not alleged future harm or damage. The only section which sets forth a ground upon which a court may *812refuse to enter declaratory judgment is I. C. § 10-1206, § 6 of the Uniform Declaratory Judgment Act:
“10-1206. When court may refuse judgment or decree. — The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.”
At the time the district court considered this matter, the portions of I.C. § 31-1605 quoted above were still in effect and had not been amended. A declaratory judgment at that time would have ended the recurring controversy concerning whether counties could carry forward cash surpluses from year to year without reducing taxes by the amount of the surplus. This was not a case in which there was a statutory ground for the court to refuse to enter judgment. Accordingly, I believe the district court erred in refusing to give declaratory judgment upon the first count.
However, 1976 I.S.L., ch. 45, §§ 13 and 14, amended I.C. § 31-1605 and added a new section, I.C. § 31-1605A, to allow counties to carry over surplus funds from year to year “sufficient to achieve or maintain county operations on a cash basis.” The statute having been amended, “the uncertainty or controversy giving rise to the proceeding,” i. e., the question of the legality of county budgeting carrying surpluses forward from year to year, appears to have been eliminated and therefore the matter need not be remanded to the district court for further proceedings.