Board of School Trustees of Las Vegas Union School Dist. No. 12 v. Bray

Citation109 P.2d 274,60 Nev. 345
Decision Date24 January 1941
Docket Number3321.
PartiesBOARD OF SCHOOL TRUSTEES OF LAS VEGAS UNION SCHOOL DIST. NO. 12 et al. v. BRAY, Superintendent of Public Instruction.
CourtSupreme Court of Nevada

Original proceeding in mandamus by the Board of School Trustees of Las Vegas Union School District No. 12, and the members thereof against Mildred Bray, as Superintendent of Public Instruction of the State of Nevada, to compel apportionment of specified sum from state school reserve fund to Clark County.

Mandamus granted as prayed.

Roland H. Wiley, Dist. Atty., of Las Vegas, for petitioners.

Gray Mashburn, Atty. Gen., W. T. Mathews and Alan Bible, Deputy Attys. Gen., for respondent.

TABER Justice.

"An act concerning public schools, and repealing certain acts relating thereto" was approved March 20, 1911. Stats. of Nevada, 1911, 183. It will sometimes be referred to herein as the Public School Act. As amended, it appears in Vol. 3 N.C.L.1929, §§ 5650-5867.

Subdivision 4(a) of amended § 151 of said act (§ 5798, N.C.L.1929) reads "Whenever any county shall have levied 35 cents on the hundred dollars assessed valuation of the county for elementary school purposes, if such levy does not bring in an amount of money equal to that required by law of such county for elementary school purposes, exclusive of bonds and interest thereon, the superintendent of public instruction shall apportion to said county from the state school reserve fund a sum of money such that taken with the amount raised by the levy of 35 cents on the hundred dollars by the county will be sufficient to make the sum required by law of such county for elementary school purposes; provided, that in the apportionment for July, 1925, said rate shall be 30 cents on the hundred dollars in counties having county high schools and said rate shall be 50 cents on the hundred dollars for combined elementary and high school purposes in counties levying a rate for such combined purposes."

Subdivision 5(a) of said amended § 151 is as follows: "The superintendent of public instruction shall then apportion to any district in the state which, after receiving the regular state and county apportionment provided for above, shall lack the necessary funds to maintain its school properly, a special district relief apportionment from the state school reserve fund, whenever such district shall have levied (and there shall have been collected the first half of) a special district tax of not less than 15 cents on the hundred dollars of assessed valuation of the district. If the county in which such district is located has levied a total tax for county school purposes, exclusive of school bonds and interest thereon, amounting to 65 cents, but for the apportionment in July, 1925, 50 cents on the hundred dollars of assessed valuation of such county, the state shall provide from the state school reserve fund a sum of money equal to not more than $5 per census child, for such relief apportionment to such district; provided, that if the state school reserve fund is sufficient, no district shall receive less than $50 relief apportionment under the provisions of this act. In case the county levy for school purposes in the county in which such district is located is less than 65 cents; but for the apportionment in July, 1925, 50 cents on the hundred dollars of assessed valuation for county school purposes, exclusive of school bonds and interest thereon and any county relief rate, the county shall provide from its county general fund such special relief apportionment to be made by the superintendent of public instruction; provided, such district has submitted a budget as now required by law for such year, and the moneys provided from this and other sources and taxes shall not exceed such budget requirements."

Subdivision 5(b) of said amended section provides that said subdivision 5(a) shall apply to any district having more than 200 pupils in average daily attendance as shown by the last preceding annual school report, only to the extent of 200 pupils.

Subdivision 2 of amended § 152 of the Public School Act (§ 5799, N.C.L.1929) provides that: "It shall be the duty of the board of county commissioners of each county, not later than the April meeting, 1925, so as to provide funds under this act for the school year 1925-1926, and annually thereafter at the time of levying their county taxes, after considering the needs of the several school districts within their county as shown by the school budgets submitted as required by law, to levy a county school tax sufficient to provide $625 per apportionment teacher and not less than $2 per pupil in average daily attendance, subject, however, to the provisions of paragraph 5(a) in section 151 of this act."

With reference to the provision last quoted, we note that by an earlier section of the Public School Act the Board of County Commissioners of each county is required, annually, at the time of levying other county taxes, to levy a county school tax, not to exceed 50 cents on each $100 valuation of taxable property. § 139, as amended (§ 5787, N.C.L.1929). This section has not been discussed, nor any mention of it made by either petitioners or respondent.

Pursuant to the provisions of subdivision 2 of § 152, in order to provide funds for the schools of Clark County's twenty-three school districts for the school year 1939-1940, the Board of County Commissioners of that county, at its April meeting in 1940, levied a county school tax of 50 cents on each $100 of the assessed valuation of the taxable property in said county. The amount raised by this levy, on the assumption of a 100 per cent payment of the tax, would be $80,375. The amount of funds required to be raised for said school year under the provisions of said subdivision 2 amounted to $72,794. The amount which would be raised by the levy of 35 cents on each $100 assessed valuation in Clark County for said school year would be $56,262.55, being $16,531.45 less than said required sum.

The superintendent of public instruction is required to make a semiannual apportionment from the state distributive school fund to the state school reserve fund of a sum of not more than $30,000. This apportionment, under the provisions of said § 151 (§ 5798, N.C.L.1929), is required to be made immediately after the state controller makes his semiannual report in January and July of each year. When the petition in this proceeding was filed, and after the July, 1940, apportionment to the state school reserve fund, there were sufficient monies in the latter fund for the apportionment to Clark County, as well as to other counties of the state entitled to said elementary school apportionment, such sums of money as, taken with the amounts raised by the 35-cent levies, would be sufficient to make up the sums required by law of such counties for elementary school purposes.

On January 9th, 1940, respondent declared in writing that commencing in July, 1940, she would apportion to Clark County its share of the state school reserve fund by using as a basis the actual amount collected by the 50-cent levy hereinbefore mentioned. In this proceeding petitioners pray that respondent be required to use, as the basis for apportioning Clark County's share of the state school reserve fund, the amount raised by the levy of "35 cents on the hundred dollars assessed valuation of the county for elementary school purposes," as provided in said subdivision 4 (a) of § 151 (§ 5798, N.C.L.1929).

It does not appear how the statutory provisions here in controversy were construed by the superintendent of public instruction prior to 1931; but since that year, and until 1940, it has been the practice of the three persons, including respondent, who have held the office of superintendent of public instruction, to apportion the state school reserve fund on the basis of the 35-cent levy, irrespective of the actual levy.

The first amendment to § 152 was in 1915, the last in 1925. The first amendment to § 151 was in 1917, the last in 1929. Both sections were amended in 1917, 1919, 1921, 1923 and 1925. Stats. of Nevada: 1917, 234-237; 1919, 154-157; 1921, 268-273; 1923, 328-332; 1925, 280-284. At the five sessions just mentioned, the changes in these two sections were in each instance made by one amendatory act. The language of subdivisions 4(a), 5(a) and 5(b) of § 151, and that of subdivision 2 of § 152, have remained the same from 1925 to the present time. No change was made in subdivision 4(a), subdivision 5(a), or subdivision 5(b) of § 151 when that section was amended in 1929.

It is agreed that subdivision 4(a) of § 151 and subdivision 2 of § 152 of the Public School Act are the statutory provisions chiefly involved in this controversy. The respective parties assert that these provisions are so plain, certain and unambiguous, and their meaning so clear and unmistakable, that there is no occasion for construction. Nevertheless, they differ widely as to their meaning. The court is of opinion that the case is one requiring statutory construction.

Petitioners contend that their interpretation of the statutory provisions under discussion should be upheld because (1) of the common usage and practice by the several executive heads of the school department, acquiesced in by governing bodies of every board of school trustees and every board of county commissioners in the state for a period of at least nine years; (2) of implied legislative endorsement in that the legislature, presumed to be familiar with the aforesaid executive practice, has not at any time modified the statute to provide a different rule of apportionment; (3) of the maxim "Expressio unius est exclusio alterius"; (4) of the rule that where one section of a statute treats specifically...

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