dissenting.
I am unable to agree with the decision of the majority.
The decision they reach, although not so stating, must be based on the premise that the legislature in amending the statute as it previously existed granted to the .county the use of the federal forest rentals to reduce the levy for school purposes.. They reach this conclusion on the basis of language which they characterize as dictum, used by this court in School District No. 4 v. Bayly et al., 192 Or 548, 552, 235 P2d 911, as follows:
“* * * We cannot accept defendants’ contention without reading, into the statute, after the word ‘aggregates’, the phrase ‘with other receipts’, or similar language, and obviously we have no authority to do this.”
As I understand Bayly, the court was simply stating it.could not accept any portion of the defendant county court’s argument as to the use of federal forest rentals to reduce the tax levy because it could not depart from the clear language of the statute, that the fund must be raised by a tax levy. Thus the underlying question as to the authority of the county to apply federal forest funds in lieu of levying taxes was not reached in Bayly.
In School Dist. No. 24 v. Smith, 97 Or 1, 191 P 506, this court held that when the legislature designates that a levy should be made by the county for *385school purposes such levy was mandatory and not discretionary.
ORS 328.005, as revised, mandatorily requires that the county shall, “create” “annually” a county school fund by taxation or “otherwise” in an amount equal to that of the preceding tax year, or ten dollars per capita for all children between the ages of 4 and 20, as shown by the preceding school census, whichever- is the lesser. There should be no question then but that the duty to create this fund rests upon the county court.
The real question then presented is whether or not the use of the words “or otherwise” can be interpreted as authorizing the county to use the Federal Forest Funds in reaching this required amount established by the legislature.
The source of Federal Forest Funds is money paid by the federal government to the state.
“Twenty-five per centum of all moneys received during any fiscal year from each national forest shall be paid, at the end of such year, by the Secretary of the Treasury to the State in which such national forest is situated, to be expended as the State legislature may prescribe for the benefit of the public schools and public roads of the county or counties in which such national forest is situated : # * *.” 16 USCA, Conservation § 500, p. 553.
The statute provides the states with a public grant, not a payment in lieu of taxes. Trinity Independent School Dist. v. Walker County, Tex Civ App, 287 SW2d 717; Tree Farmers, Inc. v. Goeckner, 86 Idaho 290, 385 P2d 649.
In Trinity Independent School Dist. v. Walker County, supra, it is clearly pointed out that these *386payments under the statute by the federal government to the states are not in lieu of taxes which might have been levied upon the lands were it not for the fact that the property is federally held, but is in fact a federal grant to the public for the benefit of public roads and schools, and the funds paid to the states are in the nature of trust funds, imposing a “sacred obligation” upon the state, King County, Wash. v. Seattle School Dist. No. 1, 263 US 361, 44 S Ct 127, 68 L ed 339, to carry out the purposes of the grant, and that the purpose of the grant to the schools is to encourage education as beneficial to the welfare of the nation.
Since the grant is one of incentive to the schools, the grant is general for the benefit of all the people of the county. Then, if the word “otherwise” is interpreted as authorizing the use of the federal grant to offset the necessary taxes to comply with the legislative mandate to create a school fund of an amount certain, the grant from the federal government to aid the schools is perverted to a grant in aid of real property taxpayers, contrary to the intent of congress.
Also, in my opinion, the legislature in using the words “or otherwise” in amending ORS 328.005 was doing no more than permitting the counties, should they have unexpended general funds, or should they sell county held property, or accept moneys for redemption of property which they had foreclosed, or received bequests or gifts, to use these funds to reduce the tax levy, but it was not relieving the counties of their duty to raise the amount mandated.
I cannot attribute to the legislature an ulterior purpose, as does the majority. I cannot believe it intended the state should forsake its trust to carry out its “sacred obligation” to the federal government *387as to these funds, simply to benefit the owners of real property in the counties affected.
For the above reasons, I dissent.