Board of Education v. Brown

KING, J.: Application was made by plaintiff for a writ of mandate to compel the defendants, as assessor and 'collector, respectively, of 'Weber county, to levy and collect the school tax assessed by plaintiff to maintain its school system for the year 1895. Plaintiff averred that it prepared in due form a statement and estimate of the amount necessary for the support and maintenance of its schools for said year, — the sum so estimated being $40,000, — and duly certified, by its president and clerk, said statement and estimate to said defendants, as assessor and collector, respectively, of Weber county, and for Ogden city, but that said defendants neglected and refused to levy the rate per cent, of tax to raise such amount, or to place and extend such per cent, and levy on the tax roll of said city, the same being the assessment roll prepared by the assessor of said county. An alternative writ of mandate was issued, and thereafter defendants moved to quash the same, and the motion was granted; From the judgment entered, plaintiff appeals. The questions presented for consideration are of the highest importance, as they involve the existence of the public-school system of this territory in all cities of the first and second classes. The lower court was of opinion that the legislature had been guilty, not only of unskill-fullness, but gross negligence, in passing legislation relating to the school system, and revenue for the support thereof, as a result of which no instrumentalities had been provided for levying and collecting school taxes in cities of the first and second classes. Accordingly it was held that the — 267 — plaintiff was not authorized to obtain revenue for school purposes by taxation, and that no duty was incumbent upon defendants to levy or collect any taxes for such purposes. [Respondents contend that plaintiff is entitled to no relief, because — First, the assessor and collector of Weber county had no power to levy or collect school taxes for plaintiff; second, the legislature failed to provide a tax roll upon which a levy of school taxes for plaintiff can be made; third, the law confers no authority upon any board or officer to equalize the tax sought to be levied; fourth, even if the legislature had attempted to delegate power to defendants to levy the tax in question, the act of delegation would be null and void. While it appears that several questions are involved, an examination of the record and the hriefs of counsel show that the real and only question submitted concerns the construction of several enactments of the legislature. In the year 1890 the legislature passed an act providing for a uniform system of free schools within the territory. In each city 6f the first and second classes a public corporation was organized, independent of the city, but coextensive with it in territorial area; and provision was made for a board of education, to be elected biennially by the electors of- the municipality. This board was invested with power to levy taxes upon the property of the district, -and to perform many duties common to quasi municipal bodies, and' which were deemed necessary for the maintenance of an advanced state system of education. Each year the hoard was to estimate and levy the taxes necessary for the support of the schools .within the district, and to pay interest on bonds, etc. The estimate and levy so made were to be duly certified by the president and clerk of the board to the assessor and collector of the city, and the assessor thereupon was required to place the taxes so levied upon the tax roll of the city, and the city collector — 268 — required to collect the same as other city taxes were collected, and pay to the treasurer created by said board. In 1892 this act was amended by the legislature, and section 129 enacted in lieu of some of the provisions above referred to. This section is as follows: “Sec. 129. The board of education shall, on or before the first day of March of each year, prepare a statement and estimate of the amount necessary for the support and maintenance of the school under its charge, for the school year commencing on the first day of July next thereafter, also the amount necessary to pay the interest accruing during such year on bonds issued by said board, and the amount of sinking fund necessary to be collected during such year for the payment and redemption of such bonds; and shall forthwith cause to be certified by the president and clerk of said board, to the assessor and collector for said city, the amount required for school purposes for the coming year, and the assessor and collector for the city, after having extended the valuation of property on the assessment rolls, shall levy such per cent., as shall as near as may be, raise the amount required by the board; which levy shall be uniform on all property within the said city as returned on the assessment roll thereof, and the said assessor and collector is hereby authorized and required to place the same on the tax roll of the city, and said tax shall be collected by the collector as other city taxes are collected, but without additional compensation for assessing and collecting, and pay to the treasurer of said board, promptly as collected and held by him subject to the order of the board of education; provided that the tax for the support and maintenance of such schools shall not exceed in any one year two mills on the dollar, upon all taxable property of said city.” Sess. Laws Utah, 1892, p. 131, c. 80. The difficulty in this case seems to arise from the supposed repeal of all statutes providing for the assessing and — 269 — collecting of taxes for city and school purposes, as well as those features relating to the assessment roll and equalization of taxes. Chapter 68 of the session laws of Utah of 1892 contains an act passed the same day as the one just referred to, and from which section 129 is quoted. Sections 1, 5-7, and 9, c. 68, provide that in the year 1893, and thereafter, assessment for taxes in all cities, towns and villages in the territory shall be made by the county assessor at the time assessments for territorial and county taxes are made, and that the list of property in each city, and the valuation thereof, shall be so made by the county assessor; that the property in each, and the valuation thereof, -will be separately shown; that the general city taxes of cities of the first and second classes shall be extended on the general roll by the county clerk, in a separate column, at the rate certified by the city council, at the same time the territorial ^nd county taxes are extended, and snch taxes, together with the county and territorial taxes, shall be collected by the county collector at the times and in the manner provided by law for collecting territorial and county taxes; that the county collector, before receiving city taxes, shall give such bond for the faithful performance of his duties as “collector of the city tax” as may be required by the mayor or city council, and all taxes collected by him shall be paid to the city treasurer. Section 9 closes the chapter, and abolishes the office of assessor for each city, town and village, and the office of collector in each city of the first and second classes. In 1894 the legislature again amended the school law, but re-enacted section 129, above referred to, with but slight modification, the change not affecting the question under discussion; and we will therefore regard section 129 of the act of 1892 as the source of power under which plaintiff seeks relief. Before construing these acts, reference to some of the — 270 — rales for the interpretation of statutes will be proper. It is clear, from the various acts to which we have referred, that it was the purpose of the legislature to make ample provision for the maintenance of free schools within the territory, and to confer upon boards of education in the larger cities power to construct schoolhouses, levy and collect taxes, and perform all necessary acts essential to establish and successfully maintain free public schools. So, where there is ambiguity or apparent incongruities in statutes, the first question to be considered is; what is the subject of it, and what object is intended to be accorn-jDlished by it? “When the subject-matter is once clearly ascertained, and its general intent, a key is found to all its intricacies. .General words may be restrained to it, and those of a narrower import may be expanded to embrace it, to effectuate that intent. When the intention can be collected from the statute, words may be modified, altered, or supplied, so as to obviate any repugnancy or inconsistency with such intention.'” Suth. St. Const. § 218. In the case of People v. Hill, 8 Utah, 334, 3 Pac. 75, this court held that the reference to section 152 of the criminal practice act, in subdivision 2 of section 192 of the same act, was manifestly a mistake, and did not express the legislative intent. Considering the subject-matter of which the legislature was treating, the court held that the legislative intent could only find expression in section 151, and said: “Subdivision 2 of section 192.will be read as though the reference were to section 151, instead of 152. Any other construction would lead to an absurdity, and should be rejected.” In the construction of a statute, if the meaning of the legislature is manifest, the intention will be carried into effect, although apt words are not used in the act; and this rule ought to, and does, go to the extent of correcting errors and mistakes which ^are clear and obvious, and without which correction no effect could — 271 — be giyen to the statute. Middleton v. Greeson (Ind. Sup.), 5 N. E. 755; Silver v. Ladd, 7 Wall. 219; Lau Ow Bew v. U. S., 144 U. S. 47, 12 Sup. Ct. 517. In the case of Lancaster Co. v. Fry, 128 Pa. St. 593, 18 Atl. 480, the court held that the word “county,” in the statute, was intended to mean “city,” and substituted the latter for the former. It was said: “It needs no argument to show that the word ‘ county * was mistakenly written for ‘city/ and it is a mistake apparent on the face of the act, which may be rectified by the context. * * * We are enabled to carry out the intention of the legislature from the plain and obvious meaning of the context, in which the real purpose and intention of the legislature is manifest.” This ■does not mean that the statute is changed, or that there is legislation by the' courts; but it is clearly the duty of the court to ascertain the intention of the legislature, to vitalize its enactments, and ■ to so construe' them that absurdities will not result, but the evident purpose of the legislature be effectuated. And for this purpose a technical ■and narrow construction is to be avoided, which might ■defeat the intention; and the literal sense of the language, ■or the natural import of the words, greatly varied, to give ■effect to the fundamental purpose clearly apparent by the statute. Respondents’ construction of the statutes would lead to the destruction of a portion of the public-school system of the territory. Buildings in course of erection could not be completed, teachers engaged for the year would be discharged, thousands of children how receiving high educational advantages turned from the school-room, debts ■contracted -remain unpaid, tax sales of cities of the first and second classes rendered invalid, innumerable suits to •quiet title would inevitably follow, and great hardship and public inconvenience ensue. So we think these acts should be construed in the most beneficial way which their Ian-’ — 272 — guage will permit, to prevent absurdities, hardships, or injustices, to favor public convenience, and to oppose all prejudice to public interests. “A thing which is within the intention of the makers of a statute is as much within the s'tatute as if it were within the letter, and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers.” Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188; Tonnele v. Hall, 4 N. Y. 140; People v. Lacombe, 99 N. Y. 49, 1 N. E. 599. It was said by Chief Justice Shaw in Com. v. Kimball, 24 Pick. 370, that, “ where any particular construction would lead to an absurd consequence, it. would be presumed that some exception or qualification was intended by the legislature, to avoid such construction.” It was said in 11 Cal. 222, in the case of Ex parte Ellis, that, “ as it is the duty of the courts to execute all laws according to their true intent and meaning, that intent, when collected from the whole and every part of the statute, taken together, must prevail, even over the literal sense of the terms, and control the strict letter of the law, when the latter would lead to possible injustice, contradiction, and absurdity.” See Jackson v. Collins, 3 Cow. 89; Pickering v. Day, 95 Am. Dec. 292; Ryegate v. Wardsboro, 30 Vt. 746; Heydenfeldt v. Mining Co., 93 U. S. 634; Brinsfield v. Carter, 2 Ga. 143; Turner v. State, 40 Ala. 21. And it must not be forgotten that the acts in question relate to revenue, and pertain to the carrying on of a portion of the government, viz., the public schools, “ A revenue law is not to be strictly construed, but rather the contrary, so as to attain the ends for which it was enacted. Bevenue statutes are not to be regarded as penal, and therefore to be construed strictly. They are remedial in their character, and to be construed liberally, to carry out the purposes of their enactment.” Cooley, Tax’n, p. 269; U. S. v. Hodson, 10 Wall. 398. — 273 — It is also shown by the record, and it is a matter of public knowledge, that ever since the passage of the acts of 1892, just referred to, until the commencement of these proceedings, there has been no controversy respecting the interpretation to be placed upon these statutes. They have been construed, with practical unanimity, in harmony with the contention of the plaintiff, and officials in the cities of the first and second classes have uniformly executed them. That being true, the court, where a law is doubtful or ambiguous, resorts to the contemporaneous construction of those who have executed the statutes. Hahn v. U. S., 107 U. S. 406, 2 Sup. Ct. 494; Insurance Co. v. Hoge, 21 How. 66; People v. Dayton, 55 N. Y. 367. Such contemporaneous construction “has almost the force of a judicial exposition, and, unless such legislation and the practice is manifestly in violation of the words used, the greatest weight should be given to it, in construing them.” Cooley, Const. Lim. 67. It is evident the purpose of chapter 68, just^ referred to, was to provide for a uniform system of assessing property. When the school law of 1890 was passed, each city and county had an assessor, and the valuation of property for county and territorial purposes was different from that for city and school purposes. To rectify this evil, and in the interest of economy, the duties of the city assessor and collector in cities of the first and second classes were devolved upon the county assessor and collector. But while the defendants were the assessor and collector, respectively, of Weber county, théy were also the assessor and collector of Ogden city. They occupied a dual position. Chapter 68 devolved upon them the duties theretofore performed by the city assessor and collector of Ogden city. While selected by the electors of the county, they were made officials of the city. Section 1 required the county assessor to assess the property of the city for city purposes; — 274 — and the county collector, by section 6, was required to give bond to the city, conditioned for the faithful performance of his duties as city collector, among which duties was to pay over to the treasurer of the city all city taxes by him collected. It is to be further observed that while chapter 68 was passed in March, 1892, prior to the assessing and collecting for that year, the county assessors and collectors were not to operate under it until 1893. So that the city assessors and collectors operated under the old statutes for the year 1892. In section 129 of the school law, passed the same day as chapter 68, this language is used: “* * * And shall forthwith cause the same to be certified by the president and clerk of said' board to the assessor and collector for said city.” This language subserves a dual purpose. It refers to officers who were, in every sense, city officers for the year 1892, as well as to the persons who, by reason of their county positions, became assessors and collectors of the cities. The language, “ assessor and collector for the city/" clearly means the persons who assess and collect for the cities, whoever such persons may be. Section 129, referred to was intended to refer to two different sets of officers. ,It was necessary that such language should be used as to bear such construction. Viewing chapter 68 and section 129 in this light, it becomes apparent that the legislative language is appropriate to express the legislative intent. Section 6 of chapter 68, in express language, refers to the county collector as “ collector of the city tax,” and “collector of the city tax” is synonymous with “collector of the city;” and section 129 indicates the legislative intention to devolve upon assessors and collectors for cities, whoever they may be, the necessary labor and duty of assessing and collecting taxes for' the school - districts within them. Bespondents contend that there is no — 275 — “tax roll of the city,” as contemplated by section 139, because of the repealing provisions of chapter 68. . Section 139, with respect to this question, again performs a double •duty. It refers to the tax roll of the city prepared and owned by the city, as was the case in 1893, and anterior thereto, and also to the “tax roll of the city” prepared by the county assessor in 1893 and thereafter. We see no uncertainty or ambiguity in the language of this section, relating to this subject. The “ tax roll of the city,” after chapter 68 went into effect, was the assessment list prepared by the county assessor, and which contained the property within the county, and .its valuation, and separately indicated the property of the city, with its valuation. We see no reason why one assessment roll may not be the tax roll for numerous political subdivisions. In fact, before the legislation under consideration, this was the case. The roll prepared by the county assessor contained the basis of assessment for county, territorial, and territorial school taxes, and there was no pretense that, because prepared by a county official, it was not a territorial assessment roll. We think the assessment roll containing the property of the city and its valuation, prepared by the county assessor, was and is the “ tax roll of the city,” within the contemplation of section 139. Respondents also insist that section 139 is unconstitu-tutional, because it attempts to delegate power to a ministerial officer to perform a legislative act. There can be no doubt of the power of the legislature to carve the territory into school districts, and to invest such districts with the power to tax for school purposes. Cooley, Tax’n, p. 61; King v. Railway Co., 6 Utah, 281, 22 Pac. 158; Kuhn v. Board, 4 W. Va. 499; Wharton v. Directors, 42 Pa. St. 358. If the legislature conferred upon the board of education of Ogden city the power to levy taxes for school purposes, any attempt upon the part of the board — 276 — to delegate that power to some other body or person would be futile. Does section 129 mean that the assessor and collector are to levy taxes? The act of 1890, above referred to, provided that the board of education each year shall prepare an estimate, and. levy the -necessary taxes for the support of the schools for the year, and certify to the assessor and collector of the city the per cent, levied on the property within the city. We do not think this provision is materially changed by section 129. It is clear, the purpose of the act of 1890 was to devolve upon the school board legislative power to levy the requisite taxes for school purposes, and to devolve upon the assessor and collector of the cities the mere ministerial or perfunctory duty of valuing the property within the city, and collecting the taxes so levied. Section 129 is not as definite and precise as the act of 1890, but the meaning seems obvious. The board of education shall “prepare a statement and estimate of the amount necessary for the' support and maintenance of schools." This, we think, is equivalent to-a levy of the tax, when accompanied by the further duty of certifying by the “president and clerk of said board to the assessor and collector for said city." The act of preparing and estimating the amount is the performance of a legislative act. In the case at bar the board, in a legislative capacity, estimated that $40,000 were required for school purposes for the current year, — that is, they levied a tax of $40,000-upon the taxable property within the school district, — and the result of their action was reduced to writing, and certified by the president and clerk of the board. This was the exercise of legislative power. In the same manner the territorial legislature estimates the various amounts required for the maintenance of public institutions, and passes an appropriation bill embodying such amounts. This is a legislative act. Thereafter the assessors and collectors of — 277 — the various counties determine the valuation of property within their respective counties, and collect the necessary sum to meet the appropriation made by the legislature. We see no difference in principle where the board certifies to the assessor that four mills have been levied by them for school purposes, if such a rate would result in placing •in its treasury §40,000, and determining that §40,000 were required, and certifying to the assessor that that amount was estimated or required for school purposes. In the one •case the board simply anticipates the value of the property, and estimates what rate per cent, would realize the amount required. In the other case they estimate the amount required, and the assessor performs the perfunctory duty of figuring or calculating what rate will produce such sum. We think there is no attempt to delegate power to the •assessor or collector to levy taxes for school purposes. The levy is complete when the board duly prepares and estimates the amount required for school purposes, and properly certifies to the assessor and collector such amount. The latter then makes the mathematical calculation of the rate per cent, upon the property within the district essential to realize the amount levied by the board. We think respondents’ third objection is not well taken. •Section 4, c. 68, supra, provides that “the county court of each county shall equalize the assessment roll of the whole county, including the assessment for general taxes of cities of the first and second class situated in the county. * * * The mayor of said city, or a member of the city council thereof, appointed by the city council, may •sit with, the county court, and be a member of the equalizing board.” The assessment roll mentioned in section 129 is the same as that referred to in section 4; and as it is provided in the school law that the “levy shall be uniform on all property within the city, as returned on the assessment roll,” and the assessment for school pur — 278 — poses is extended on the city assessment roll, the equalization by the county court, nnder the auspices of the city, obviates the objection urged. We think that the statutes to which we have referred' áre not so repugnant as to be incapable of reconciliation. They relate to a common subject, the intention of the-legislature is clearly discernible, and the construction which we have given them is certainly within the spirit, if hot-within the letter, of the law. We are of opinion that these statutes provide a general educational scheme within cities, of the first and second classes, and, though unskillfully drawn, are not to be overturned by the objections which respondents have urged against them. The judgment of the low'er court is reversed, and the case remanded, with directions to the lower court to grant the writ of mandate as prayed for by the plaintiff. MerRitt, O. J., and Bartch, J., concur.