The Chicago v. Nichols

• Decision Date: 03 May 1930
• Docket Number: 29,132
• Citation: 287 P. 262,130 Kan. 509
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant, v. D. J. NICHOLS, as an Individual and as County Treasurer of Jewell County, CHARLES E. SWEET, V. A. JONES and GEORGE L. DEMPSEY, as Individuals and as the Rural High-school Board of District No. 5, in Jewell County, and RURAL HIGH-SCHOOL DISTRICT No. 5, in Jewell County, Appellees

287 P. 262

130 Kan. 509

THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant, v. D. J. NICHOLS, as an Individual and as County Treasurer of Jewell County, CHARLES E. SWEET, V. A. JONES and GEORGE L. DEMPSEY, as Individuals and as the Rural High-school Board of District No. 5, in Jewell County, and RURAL HIGH-SCHOOL DISTRICT No. 5, in Jewell County, Appellees

No. 29,132

Supreme Court of Kansas

May 3, 1930

Decided January, 1930.

Appeal from Jewell district court; WILLIAM R. MITCHELL, judge.

Cause reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. SCHOOLS--Rural High Schools--Amount of Levy. The provisions of R. S. 79-1937 relative to the procedure to be followed by a school district to increase its levy of taxes at the annual meeting do not extend to rural high-school districts whose taxing powers are limited by the provisions of R. S. 72-3506 and an attempted increase in the levy made by a rural school district board in accordance with the provisions of R. S. 79-1937 is invalid.

2. STATUTES--Construction--Laws Reenacted by Revision. The fact that two laws passed at different sessions of the legislature are reenacted in a later revision of the statutes does not preclude resort to the history of the acts or the use of any other proper rule of construction to determine the legislative intent, where a claimed right or authority does not clearly appear in the laws as set forth in the revision.

Luther Burns, J. E. DuMars, both of Topeka, R. W. Turner and D. F. Stanley, both of Mankato, for the appellant.

D. M. McCarthy and L. E. Weltmer, both of Mankato, for the appellees.

Jochems J. Johnston, C. J., and Marshall, J., dissenting.

OPINION

JOCHEMS, J.:

Plaintiff sought to recover taxes paid under protest. Defendants filed an amended answer alleging grounds justifying the levy. Plaintiff filed a demurrer to this answer which was overruled, and from this order plaintiff appeals.

Plaintiff alleged that the defendant rural high-school district No. 5 of Jewell county could not lawfully levy more than the six-mill levy on taxable property within its district for general purposes and that it disregarded this limitation and made a levy of eight mills for the year 1927. Plaintiff alleged further that an additional one and one-half-mill levy was made for interest and sinking-fund purposes, but does not contest this additional levy of one and one-half mills and makes no point concerning it. Plaintiff paid its taxes under protest and brought this action to recover the amount of the two mills, alleged by plaintiff to have been unlawfully levied for general purposes.

In their answer defendants admitted the levy of eight mills for general purposes as alleged by plaintiff, but set up that the defendant district was acting under the provisions of R. S. 79-1937 and that in pursuance thereto proper notice had been given and a vote had upon the question of the increased levy at the annual meeting of the defendant school district. The defendant district alleged full compliance with the procedure indicated by that statute and that the levy of eight mills had been made in accordance therewith and with the provisions of chapter 237 of the Laws of 1925.

The appellant contends upon appeal that the amended answer of defendants showed upon its face that the levy was excessive and unlawful and that its demurrer thereto should have been sustained because the answer did not set forth facts showing a defense to plaintiff's petition.

The appellant makes the contention that authority for the establishment of defendant rural high-school district is first found in chapter 311 of the Laws of 1915, which appears in R. S. 72-3501 to 72-3514, inclusive. R. S. 72-3506 states the limitation on taxes and was later amended by chapter 237 of the Laws of 1925. The amendment added in 1925, however, simply added a proviso relative to counties having a population of less than 8,000, but it is conceded that Jewell county, in which the defendant district is situated, has a population of approximately 16,000 and the amendment therefore does not apply.

The appellant contends that the sole question involved is this: Does R. S. 79-1937 extend to R. S. 72-3506 and authorize an increase in rural high-school districts over the six-mill levy fixed as a maximum?

It is pointed out that R. S. 79-1937 was originally adopted in 1909 as section 27 of chapter 245 of the Laws of 1909, and that R. S. 72-3506 was not adopted until 1915. Further, that inasmuch as the statute of 1909 (now R. S. 79-1937) did not establish or recognize rural high-school districts and rural high-school districts were not created until the enactment of chapter 311 of the Laws of 1915 (now R. S. 72-3506) it is manifest that the provisions of the law passed in 1909 could not apply to a subdivision of the state not created until 1915.

The appellees, on the other hand, contend that when the legislature in 1923 enacted the Revised Statutes and included both the act of 1909 and the act of 1915 in the revision it closed the doors to tracing legislative history of the acts for the purpose of construing them, except where such acts may be in conflict and irreconcilable. They contend that the two acts were reenacted in 1923 in the same session of the legislature as part of the same general revision and are therefore to be considered as acts passed at the same session of the legislature, and further, that the rule of construction, therefore, is that they may not be construed as inconsistent if they may fairly be read otherwise, citing McMaster v. Gould, 239 N.Y. 606, 147 N.E. 214, 40 A. L. R. 792. They contend further that regardless of whether the legislature had rural high-school districts in mind when it passed chapter 245 of the Laws of 1909, that when it enacted the Revised Statutes and incorporated therein both R. S. 72-3506 and R. S. 79-1937, it then necessarily had in mind rural high-school districts, and that it was the evident intent of the legislature that both should stand together and that the method provided in R. S. 79-1937 for increasing the maximum levy should also apply to rural high-school districts.

On the other hand, the appellant cites Arkansas City v. Turner, 116 Kan. 407, 226 P. 1009, wherein the second syllabus reads:

"Where conflicting and irreconcilable provisions of prior legislative acts are included in a revision and codification of the General Statutes, the legislative history of the separate conflicting acts should be traced, and the later enactment is to be regarded as the existing law, and the older of the conflicting and repugnant provisions, although carried forward into a revision of the General Statutes which was adopted and approved by the legislature, is to be considered as repealed by implication."

Is there anything conflicting and irreconcilable between the two acts? Can these sections be read together and consistently construed to mean that the provisions of R. S. 79-1937, relating to the method by which a common-school district may increase its taxes beyond those limited by the act, be followed by a rural high-school district whose rate of tax is limited by R. S. 72-3506?

The fact that both sections appear in the 1923 revision is rather persuasive, but where, as in this case, the claimed authority does not clearly appear in the acts as reenacted in the revision we conclude that resort should be had to the history of the acts and to any other proper rules of construction to determine the true legislative intent.

Section 2 of article 6 of the Kansas constitution reads:

"The legislature shall encourage the promotion of the intellectual, moral, scientific and agricultural improvement by establishing a uniform system of common schools and schools of a higher grade embracing normal, preparatory, collegiate and university departments."

Under this provision of our constitution the legislature has created and established our system of common schools, and from time to time created schools of higher grade. In creating common and high schools the legislature has placed their management and conduct under subdivisions of the state known as districts. Since the constitution places the responsibility for providing a system of education upon the legislature, it logically follows that a school district created by the legislature has no inherent power of taxation. It must look to the legislature for its right to raise funds by taxation, and has only such power to levy, assess and collect taxes as is clearly granted by the legislature.

A few comparisons of the statute relating to common schools and to the statute relating to rural high schools will throw some light upon how the legislature has treated the two taxing districts.

R. S. 72-401 fixes the date of the annual meeting of common-school districts as the second Friday in April of each year at 2 o'clock p. m.

R. S 72-3506 fixes the annual meeting of rural high-school districts for the election of officers at 2 o'clock p. m. on the day before that fixed for common...