For many years the rising cost of public activities, constantly increasing the burden upon the taxpayer, has been the subject of serious civic concern. In order to compel governing bodies to proceed with caution in the expenditure of public funds, Budget Acts have been enacted by the legislatures of many states with the idea of preventing extravagance and compelling the exercise of economy, without the loss of efficiency, in governmental functions. In 1919 our legislature enacted Chapter 205, a Budget Act relating to the state government (Laws 1919, p. 491), and Chapter 211, providing for the creation of a rural school district in each county. Section 5 of Chapter 211 requires the *Page 581 board of trustees of each subdistrict therein before the first Thursday in July to prepare and certify to the board of trustees of the rural school district a budget which "shall explain in detail the several items of estimated expenditures, together with an explanation of the necessity therefor" (Laws 1919, p. 516); with amendments section 5 is now section 1044, Revised Codes 1921.
Chapter 146, Laws of 1931, the School District Budget Act, is a development of that policy; the idea is to compel a school district to live within its income. The purpose of the Act is to curb extravagance in school affairs, to reduce expenses to the necessities, and to that end to afford to the taxpayer, at frequent intervals when the budget is under consideration, information as to the financial situation of and the requirements of the district, in order that he may be in a position to appear before the board and intelligently make known his desires with respect to the maintenance of the schools, and to voice his protest against that which he may think unnecessary. In furtherance of this design the legislature has spoken in no uncertain words. It has declared emphatically when and how each step shall be taken, employing the mandatory words "shall" and "must."
Chapter 146 provides a budget system for making and controlling estimates, expenditures and tax levies by school districts, creating a board of school budget supervisors in each county, prescribing their powers and duties, and specifying the duties of school trustees, school clerks and county officers in connection therewith. Passing by sections of the Act which direct the county superintendent to furnish blanks and information to the trustees, it is provided in section 5 that during the month of May of each year, and before the thirty-first day of the month, the county superintendent must cause a notice to be published in the official newspaper of the county, stating that in each school district the board of trustees will meet in regular session on the second Monday in June at its usual place of meeting, and will at such meeting prepare and adopt a preliminary budget for the next ensuing school year, and *Page 582 that any taxpayer in the district may appear at such meeting and be heard on such preliminary budget. At the regular meeting of the board of trustees on the second Monday in June, it must consider, prepare and adopt a preliminary budget for the next ensuing school year, and any taxpayer in the district may appear and be heard in regard to the preliminary budget, or any item or amount proposed to be included therein. (Sec. 6.) If, after the board of trustees has adopted the preliminary budget, it appears to the board that the amount which will be received from a ten-mill tax levy, and from other sources, for the general fund of the district, as shown by the county superintendent's estimate of revenues, will not be sufficient to meet and take care of the expenditures proposed to be made during the ensuing school year from the general fund as contained in the preliminary budget, the board must determine and make an estimate of the amount of the deficiency and the number of mills of additional levy required to be made "to meet and take care of the deficiency," and must call an election in the manner prescribed by law for the purpose of obtaining the approval of the qualified electors of the district to the making of the additional levy, "and such election must be held before the 1st day of July." (Sec. 7.)
The county superintendent, as clerk of the board of school supervisors, between the tenth and twentieth day of July of each year, must publish a notice in the official newspaper of the county stating that the preliminary budgets of all school districts in the county for the ensuing school year, as prepared by the boards of trustees of such districts, are on file in the office of the county superintendent; that the same are open to the inspection of all taxpayers, and that the board of supervisors will meet at the office of the county superintendent at 10 o'clock in the morning on the fourth Monday of July for the purpose of considering, fixing, and adopting the final budget and fixing the amount of the expenditures which may be made for each purpose by each school district, and any taxpayer in the school district may appear at such meeting and be heard before the board on any part of the budget for his *Page 583 district. (Sec. 8.) Immediately after the thirtieth day of June the county superintendent must attach to the preliminary budget for each school district an estimate of receipts and statistics for apportionment. (Sec. 9.) After the county superintendent has attached such schedule to the preliminary budget for each school district, and before the tenth day of July, the county treasurer must prepare a statement for each school district, showing the amount of cash on hand at the close of the last school year, the obligations to be met during the current school year, and the details of bonds outstanding, which statement must be attached to the preliminary budget for such school district. (Sec. 10.) Before the third Monday in July the county clerk shall prepare a certificate for each school district, which the county superintendent shall attach to the preliminary budget for such district, showing the total taxable valuation of the school district, and certifying also, if such be the fact, that he has on file a certificate of election showing that an additional levy, stating the number of mills, has been authorized. (Sec. 11.) And on the fourth Monday in July, at 10 o'clock in the morning, the board of school budget supervisors of each county shall meet in the office of the county superintendent of schools, at which time the county superintendent, as clerk, shall lay before the board all the preliminary budgets adopted by the trustees in the several school districts, with the county superintendent's and county treasurer's statements and the county clerk's certificate attached thereto; whereupon the board shall proceed to examine and consider the same. The board may adjourn its meeting from day to day, but must approve and adopt the final budget for each school district and fix and determine the amount to be raised by tax levy for each school district not later than the second Monday in August, and before the fixing of tax levies for such districts. At such meeting, and at all adjournments thereof, any taxpayer in any district may appear before the budget board and be heard upon the budget for such district and on any item or amount contained therein. (Sec. 12.) *Page 584
In these sections mandatory words are employed where there is a direction that an act is to be done; the word "shall" is used seven times, and the word "must" ten times.
There is nothing permissive or directory in the language used; it is mandatory, peremptory. As is said in State ex rel.O'Connor v. McCarthy, 86 Mont. 100, 282 P. 1045, 1048: "The legislature used the verb `must,' which denotes `obligation,' as `we must obey the laws' (Webster), and, when used to impose a duty, it is mandatory and peremptory, excludes discretion, and imposes upon the officer an `absolute duty to perform the requirements of the statute in which it is employed.' (People v. Thomas, 32 Misc. 170, 66 N.Y. Supp. 191, 193; In reFarrell, 36 Mont. 254, 92 P. 785, 787; Ex parte Smith,152 Cal. 566, 93 P. 191; Reinert Bros. Const. Co. v. Tootle,200 Mo. App. 284, 206 S.W. 422.)"
In his excellent brief, counsel for appellant argues that, as the attack upon the election, the basis of the special levy, was made after the election had been held, the requirement that such an election must be held before the first day of July should be construed to be directory rather than mandatory — that it does not make any difference whether the election was held before or after the first of July, provided it was before the fourth Monday of that month, and the majority of the court agrees with him. It does not seem to me the argument is sound. The records compiled in the county superintendent's office prior to July 20, and concerning which the superintendent was required to publish notice that the preliminary budget for the school district had been prepared, would not have given a taxpayer any information respecting a special tax levy, for no election for that purpose had been held; all the acts required to be done by the county superintendent by sections 8 and 9, and the certificate of the county clerk required by section 11, were completed before the special election was held. The record upon which the board of school budget supervisors must act is made up from the records compiled in the county superintendent's office prior to July 20, which necessarily excludes a special election held on that day. Moreover, a taxpayer *Page 585 would be without official or any notice of an impending tax levy based upon an election not contemplated by law.
I do not find anything in the record to support the assertion of the majority that the taxpayers were not "deceived or misled as to information contained in the preliminary budget on file," unless it is that information as to the special election was not there. This seems to be an attempt to pump air into a sagging tire. It cannot be assumed that all of the individual taxpayers required to pay the tax resided in the district or had notice of the election. The question, in effect, is asked, What difference would it make whether or not the taxpayers had notice of the election? The answer is that the statute gives them the right to notice. (Sec. 8.) Moreover, a taxpayer might have very good reasons to appear before the board to express his wishes or lodge his objections with respect to the expenditure of money to be raised by an additional levy. This, like some of the suggestions in the majority opinion, may not be important. What is important is that the legislature assembly had the power to say, and said, what steps should be taken in order to impose upon the taxpayers an additional tax. The legislative intent is not doubtful; it is clear and explicit, expressed in words as forcible as could well be selected.
When the legislative intent is clearly disclosed from the object to be accomplished, and the particular imperative directions of the Act are considered, we should hold that section 7 definitely limits the time within which the electorate must express its will with relation to a special levy. (Howard v.Jensen, 117 Neb. 102, 219 N.W. 811, 813.)
Over thirty years ago this court declared it to be the rule, particularly in regard to special taxes, that the various steps provided by statute to be taken in levying them must be observed. (Hilburn v. St. Paul etc. Ry. Co., 23 Mont. 229, 58 P. 551,811.) This is supported by the great weight of authority. "Acts required by a statute to make a tax chargeable are conditions precedent, and must be strictly complied with. (Hewes v.Reis, 40 Cal. 255.) `Statutory provisions regulating the assessment and levy of taxes are mandatory *Page 586 when their object is the protection of the taxpayer.' (1 Desty, Taxation, p. 515.) In tax laws, provisions for the levy of a tax are imperative. (1 Cooley, Taxation, 4th ed., sec. 124; Jones v. State, 17 Fla. 411; People v. Otsego County, 51 N.Y. 401; City of Indianapolis v. McAvoy, 86 Ind. 587)." (Howard v. Jensen, supra.) "`The power and authority to levy and collect taxes is wholly statutory, and where the purpose for which and the circumstances under which a special tax may be levied are expressly defined and limited by statute, the prerequisite circumstances must exist in order to give legal effect to a pretended tax levy for such purpose.' (Oregon ShortLine R. Co. v. Minidoka County, 31 Idaho, 719, 175 P. 962)." (Smith v. Canyon County Consol. School Dist., 39 Idaho, 222,226 P. 1070, 1075.)
This is not a case wherein it may be said there has been a substantial compliance with statutory requirements; the groundwork is not here. The election was not held within, but beyond, the authority of the statute. Therefore it was void. (Compare Weber v. City of Helena, 89 Mont. 109,297 P. 455.)
Certainly there cannot be any doubt as to the legislative intent when the law-making body said: "Such election must be held before the 1st day of July." "`The intention of the legislature must be inferred from the plain meaning of the words. This rule must be first resorted to before resort should be had to other rules.' (Hedges v. County Commissioners, 4 Mont. 280,1 P. 748; State v. Cudahy Packing Co., 33 Mont. 179, 114 Am. St. Rep. 804, 8 Ann. Cas. 717, 82 P. 833)." (Great NorthernUtilities Co. v. Public Service Com., 88 Mont. 180,293 P. 294, 299.)
Fifteen years ago this court said: "It is a rule which has been in force in this jurisdiction for more than 35 years, that, whenever the language of a statute is plain, simple, direct, and unambiguous, it does not require construction, but it construes itself." (Cruse v. Fischl, 55 Mont. 258, 175 P. 878, 880.) The rule has been affirmed repeatedly. (State ex rel. Bevan v.Mountjoy, 82 Mont. 594, 268 P. 558; Chmielewska v. Butte *Page 587 Superior Min. Co., 81 Mont. 36, 261 P. 616; State ex rel.Federal Land Bank v. Hays, 86 Mont. 58, 282 P. 32.)
If the trustees of School District No. 12 employed by contract a greater number of teachers than the district was able to pay for, and thus absorbed all the moneys available for maintaining the school, that will not justify frittering away by construction the provisions of the Budget Act designed for the protection of the taxpayers. As the supreme court of Idaho said in Smith v.Canyon County Consol. School Dist., supra: "The resulting situation is an unfortunate one. It is due, however, to the provisions of the statutes. This court would not be justified in refusing to give effect to the plain provisions of the statutes merely because the result is undesirable."
The majority opinion says this, in effect: True, the statute is mandatory, but, in order for the taxpayer to maintain his rights, he must rush into court and sue out an injunction; if he does that, the election will fail; but, whether he has notice of the election or not, if he waits until after the election, he is without remedy, for the statute, once mandatory, is now to be deemed directory.
The force of another statute is disregarded; it provides that in all cases of levy of taxes which are deemed unlawful by the party whose property is taxed, or from whom the tax is demanded, the party may, before the tax becomes delinquent, pay the same under written protest to the officer authorized to collect the same, and he may within sixty days thereafter bring suit against the officer collecting the tax to recover the same. (Sec. 2269, Rev. Codes 1921, as amended by Chap. 142, p. 255, Laws 1925.) The plaintiff pursued this course, but its counsel were mistaken in believing that this statute means what it says.
This suit in itself is of no special moment, but the rule established in this case will affect every taxpayer who desires to challenge the legality of a tax imposed upon his property pursuant to a special election. The effect of this decision is to declare that, in the absence of an injunction to restrain it, an *Page 588 election for the imposition of a special tax may be held at any time. This is tantamount to the destruction, rather than a construction, of section 7 of the Budget Act.
"It is the duty of the courts to declare the law as it is, and not to exercise their ingenuity in trying to devise means by which its clear and explicit injunctions may be evaded." (Mr. Chief Justice Brantly in Helena Water Works Co. v. City ofHelena, 27 Mont. 205, 70 P. 513, 515; Farbo v. SchoolDistrict No. 1 of Toole County et al., ante, p. 531, 28 P.2d 455.)
The outcry against the constantly increasing taxation is heard on every side. Failure to follow the law as it is written has contributed in considerable measure to the financial headache with which the taxpaying body is now suffering. I think the judgment of the district court is right, and that it should be affirmed.
Rehearing denied January 10, 1934, MR. CHIEF JUSTICE CALLAWAY dissenting.