Howard v. Jensen

Decision Date28 May 1928
Docket Number26025
Citation219 N.W. 811,117 Neb. 102
PartiesHERBERT H. HOWARD ET AL., APPELLANTS, v. J. H. JENSEN, COUNTY TREASURER, ET AL., APPELLEES
CourtNebraska Supreme Court

APPEAL from the district court for Kearney county: LEWIS H BLACKLEDGE, JUDGE. Reversed, with directions.

REVERSED.

Lewis C. Paulson, for appellants.

C. P Anderbery and J. L. McPheely, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD THOMPSON and HOWELL JJ., and LANDIS, District Judge, ROSE, DEAN, and HOWELL, JJ., dissent.

OPINION

LANDIS, District Judge.

This is an action wherein certain resident taxpayers of school district No. 67, of Kearney county, Nebraska, seek to enjoin the county treasurer from collecting the 1926 annual tax levy for the Lowell rural high school district, composed of two country grade school districts Nos. 67 and 2. The trial court dismissed plaintiffs' action, and they appeal.

The expenses of maintaining rural high schools are borne by the districts united for that purpose in proportion to their assessed valuation. The trustees prior to the annual meeting prepare an estimate of the sums necessary for maintenance for the coming year. This estimate is presented for adoption to the electors at the annual school meeting. The trustees certify to the county clerk and county superintendent the estimate adopted at the annual meeting, thereupon the board of county commissioners make the levy. Comp. St. 1922, sec. 6382.

Section 6377, Comp. St. 1922, provides: "The annual school meeting of each rural high school district shall be held at the schoolhouse, if there be none at some other suitable place within the rural high school district, on the first Monday of June of each year."

The appellants' complaint against the tax levy is that it is not based upon an estimate adopted by the school electors in an annual meeting as provided for in section 6377, supra. The tax is based upon an estimate adopted at a meeting of the electors on the second Monday of June, 1926.

This appeal presents only one question, namely, what is the effect on the instant tax levy of the failure of the Lowell rural high school district to hold its annual school meeting on the first Monday of June, 1926? In the determination of this question the prime effort is to ascertain the legislative intention as disclosed by the provisions of the law and the general object intended to be accomplished. The rural high school act, sections 6373-6384, Comp. St. 1922, has as part of its general object an enforced contribution of money based on the assessed valuation of property within the district for the purpose of maintaining a school of more than eight grades. Among the protecting conditions precedent to the enforced contribution or tax are: (a) "The trustees shall, prior to the annual meeting herein provided, prepare an estimate of the sums required for the maintenance of the high school during the coming year and present such estimate for adoption to the electors at such annual meeting." Comp. St. 1922, sec. 6382. An annual meeting set on a definite date in terms "shall be held on the first Monday of June of each year." Comp. St. 1922, sec. 6377.

Appellees contend that section 6377 directs the holding of the annual meeting at a certain time, without negative words restraining the holding of it afterwards, hence this provision as to time should be held directory, and not a limitation of authority. The obvious intention of the legislature gathered from the provisions of the act was to protect the taxpayer. Definite regulatory provisions to base the assessment and levy of the tax are set out. Certain steps, the very essence of which are proceedings for the benefit and protection of the taxpayer, must be taken before the enforced contribution for support of the school is available.

The electors of school district No. 67 are required to hold their annual meeting on the second Monday in June of each year. In the instant case the rural high school district, of which school district No. 67 is a part, held its annual meeting also on the second Monday of June, in school district No. 2. It might easily occur that thereby electors of district No. 67 would be prevented from attending this rural high school meeting. Under the circumstances it is fair to say that electors of district No. 67 would have to decide whether to attend their annual meeting or the rural high school district meeting when it is their legal privilege to attend both. The consequences that would result from construing the provisions of a statute should be taken into consideration in determining the intention of the legislature.

It is to be noted in considering the particular language used in sections 6377 and 6382 that the imperative word "shall" is used, and not the permissive word "may," whenever reference is made to the annual meeting. Standing alone, the literal meaning of "shall" might not have weight; but, in determining the intention of the legislature as to what is necessary upon which to base the assessment and levy of a tax, some consideration must be given to the generally accepted meaning of the word.

In State v. Cones, 15 Neb. 444, 19 N.W. 682, a quo warranto action, is announced the syllabus: "The annual school meeting of each school...

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