concurring.
I concur in the majority opinion. I add the following. - At the hearing before the State Board of Education, *91both it and the plaintiff school district construed the statute to make section 12 and its limitations applicable to the plaintiff. Its application for relief under the “hardship” provision was founded on the premise that the limitation of the section was applicable. Its appeal to the district court was primarily on that premise.
The legislative intent is to be sought, first of all, within the bounds of the statute itself. S'et forth following are: 1. A draft of the statute as it ought to read if the plaintiff’s present contention were correct. 2. A draft rewritten in accordance with the practical construction placed upon it by both parties until otherwise interpreted by the trial court, which draft also contains my interpretative comments.
Section 12, if drafted in accordance with the plaintiff’s present contention that “actual per pupil cost, in any particular year” means per pupil cost in the year preceding the year for which aid is being computed, would read as follows. The portions in brackets and/or parentheses indicate the changes required by such contention.
“For a district in which actual per pupil cost [for the year preceding the year for which aid is being computed (or is to be paid)], exceeds the total financial support prescribed [for the year for which aid is being computed (or is to be paid)], by sections 7, 8, and 11 of this act the following limitation shall apply: Notwithstanding the grant provisions of sections 4, 5, 7, 8, and 11 of this act, funds received under this act [in the aid year], when added to operating funds received [in the aid year] from all other sources, shall not exceed the larger of the following amounts:
(1) [Not applicable]; or
(2) The' sum' necessary to support a ■ per pupil cost eight per cent above that of the preceding *92year; Provided, (here follow the hardship provisions)
If section 12 were rewritten in accordance with the practical construction placed upon it by both parties until otherwise interpreted by the trial court, it would read as follows. Interpolated in brackets, are my interpretative comments indicating my analysis of all versions, including that of the statute itself.
“For a district in which the per pupil cost for the year in which aid is being computed (or for which it is to be paid), exceeds the total financial support prescribed by sections 7, 8, and 11 [the foregoing clause under any version of the section can only refer to the year for which aid is being paid], of this act the following limitation shall apply: Notwithstanding the grant provisions of sections 4, 5, 7, 8, and 11 of this act, funds received under this act, [the immediately foregoing clause under any version can only refer to year for which aid is being paid], when added to operating funds received from all other sources [again this clause under any version can refer only to the aid year (and most significantly determination of operating funds must be based upon budget figures and not actual expenditures)], shall not exceed the larger of the following amounts:
(1) [Not applicable]; or
(2) The sum necessary to support a per pupil cost eight per cent above that of the preceding year.”
Plaintiff concedes in its brief, page 29, under its theory of a condition precedent, that to read the section literally results in an absurdity. It then proposes to solve the quandry by reading something into the statute that is not there. This is a concession by it, at least, that the section is ambiguous. It therefore must be analyzed to try to determine the legislative intent.
From the analyses of section 12, which I have set forth earlier, it seems apparent to me that where this *93section speaks of “actual per pupil cost, in any particular year,” it is referring to a cost based upon budget figures for the aid year and a per pupil cost for the year based upon that budget.
I say this because based upon the analyses, it is, to me, indisputable that the clause “the total financial support prescribed by sections 7, 8, and 11” necessarily refers to the support for the aid year, for it, by the very context, relates to the phrase “in any particular year”. Therefore the phrase “in any particular year” refers to the year for which aid is being computed. The original opinion in this case concedes this.
Even more conclusive, in my judgment, is the relation of the phrase “in any particular year” to the clause “funds received under this act.” It obviously refers to funds received in the aid year and that under the statute is “in any particular year.”
Then we get to the clause “when added to operating funds received from all other sources.” It is apparent that the determination of these funds can be made only with reference to the budget figures. Yet surely the statute is referring again necessarily to “funds received from all other sources” “in any particular year.”
The plaintiff’s interpretation of the statute necessarily requires that the phrase “in any particular year” be used in the very same sentence to mean both “the preceding year” and “the year for which aid is being computed and funds received” (quotation marks supplied on the last). This obviously cannot be. It necessarily follows that in this section the term “actual per pupil cost” must, because of the context, not be equated with the definition in subsection- (3) of section 2.
The three clauses or phrases by the very language of the act refer to matters which are determinable only with reference to the aid year and by the terms of the section all relate back to “any particular year.” It seems to me that it follows as night the day that “actual per pupil cost in any particular year” can refer only *94to a cost based, upon the aid year budget. The one term (used only once) cannot, have two meanings in the same sentence.
The uncontradicted evidence is that the plaintiff in its application, exhibit 3, to ■ the State Board of Education for aid computed its estimated per pupil cost for 1968-69 as $494.42. It used that figure to determine the applicability -of the limitation of section 12. Total financial support per pupil under sections 7, 8, and 11 would be $465.31 or $476.81. See original opinion, 186 Neb. 178, 181 N. W. 2d 861, 863. The 108 percent of the per pupil cost for 1967-68 was $469.67 and this constituted the limitation for 1968-69. Section 12 did apply to plaintiff.
Additionally we offer the following grounds for reversal. A party may not on review change the theory on which the case was tried or the ground or action of defense relied upon by him below. 5 C. J. S., Appeal & Error, § 1503, p. 863. Before the State Board of Education, its theory was the section 12 limitation applied. In addition, both the State Board of Education and the plaintiff interpreted the section 12 limitation to apply. Contemporaneous construction may be considered by the court. 82 C. J. S., Statutes, § 357, p. 758. See, also, State v. Equitable Life Assur. Soc., 68 N. D. 641, 282 N. W. 411. The case of Zenith School District No. 32 v. Peterson (N. D.), 81 N. W. 2d 764, cited in the dissenting opinion of Judge Smith has no application. The reversal of the judgment of the trial court is required.