COMMON SCHOOL DIST. NO. 2 v. District No. 1 , 71 Idaho 192 ( 1951 )

KEETON, Justice

(dissenting).

The trustees of Independent School District No. 1 (Lewiston School District) by resolution adopted April 10, 1950, ordered a special annexation election to be held in School District No. 2, Nez Perce County, on June 16, 1950, pursuant to the provisions of Sec 3, Chap. 92, Idaho Session Laws of 1939, which law respondents (Common School Districts No. 2, 3 and 4 of Nez Perce County) contend, and the trial court found to be unconstitutional. This special legislative act, Chap. 92, supra, amended a former legislative act approved December 30, 1880.

In a former annexation election called for respondent school districts for the same purpose, held May 15, 1950, the proposed annexation was rejected. A second election was then called embracing only the territory of Common School District No. 2, to be held June 16, 1950. This action was brought by the school districts affected, Common School Districts No. 2, 3 and 4, of Nez Perce County, to prohibit the election, alleging among other things, that Sec. 3, Chap. 92, Idaho Session Laws of 1939 is unconstitutional. The lower court so found and permanently prohibited, by appropriate order, the holding of such election. This appeal is from the order.

In examining the legal questions submitted, it should be borne in mind that the territory embracing Common School District No. 2, was never a part of the Lewis-ton District; also, Districts No. 2, 3, and 4 are common school districts, created under the general laws of the State, and conduct and maintain a school for the pupils of the three respondent districts. Further, School Districts No. 2, 3 and 4, are covered by the provisions of the reorganization school statute, Secs. 33-501 to 33-529, I.C., inclusive, passed in 1947.

It is here contended that the territory contiguous and adjacent to the appellant district (Lewiston) is not protected and covered by the reorganization school law or by the constitutional provisions hereinafter quoted, and that the appellant school district can proceed under a special act, Chap. 92, 1939 Session Laws, to incorporate within its boundaries territory plainly covered by the terms of the constitution and by the general laws of the State.

Not only under a special law does the appellant district attempt to take in territory not covered by its charter, but by so doing, it confiscates the school property of District No. 2 (school house equipment, etc.) and may saddle the taxpayers within the district with a bonded indebtedness (its proportional part of the bonded indebtedness of the defendant school district, $700.-000) without complying with any of the statutes of the State or the Constitution providing the manner and method of bonding a political subdivision of the State. If the proceedings attempted here are upheld, the taxpayers' of District No. 2 not only lose their school property, but, if Section 3, Chap. 92, 1939 Session Laws be followed as worded, become indebted in an' undetermined sum by a majority vote of persons not shown to be legally qualified to assume such indebtedness. I think the wording of the statute supra susceptible of no other construction.

Art. 9, Sec. 1, of the Idaho Constitution provides as follows: “The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.” (Emphasis supplied.)

Art. 3, Sec. 19 of the Constitution provides :

“The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say:

“Providing for and conducting elections, or designating the place of voting.

“Releasing or extinguishing, in whole or in part, the indebtedness, liability or obligation of any person .or corporation in this state, or any municipal corporation therein.

“Providing for the management of common schools.

“Creating offices or prescribing the powers and duties of officers in counties, cities, townships, election districts, or school districts, except as in this' constitution otherwise provided.”

Sec. 3, Art. 8, Constitution of Idaho: “No county, city, town, township, board of education, or school district, or other subdivision of the. state, shall incur any indebtedness, or liability, in any manner, or for any purpose,' exceeding in that year, the income and revenue provided for it for such year, without the assent of two-thirds of the qualified electors thereof voting at an election to be held for that purpose, nor-unless, before or at the time of incurring such indebtedness, provision shall be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls, due, and also to constitute a sinking fund for the payment of the principal thereof, within twenty years from the time of contracting the same. Any indebtedness or liability incurred contrary to this provision shall be void: provided, that this section shall not be construed to apply to the ordinary and necessary expenses authorized by the general laws of the state.” (Emphasis supplied.)

Sec. 2, Art. 11, Constitution of Idaho: “No charter of incorporation shall be granted, extended, changed or amended by special law, except for such municipal, charitable, educational, penal, or reformatory corporations as are or may be, under the control of the state; but the legislature shall provide by general law for the organization of corporations hereafter to be created: provided, that any such general law shall be subject to future repeal or alteration by the legislature.”

The general demurrer to the petition admits the truth of the allegations contained in the petition, and among the facts alleged and admitted, are the following: “That by reason of their joint conduct of school for the past eight years or more, the plaintiff common school districts are in fact, if not in law, a single district and that such community of interest has been known to and recognized by the defendants, as hereinafter alleged.”

Further, that while Common School District No. 2 has no bonded indebtedness whatsoever, Lewiston School Distinct No. 1 has a bonded indebtedness of $700,000, and: “ * * * that the taxpayers within plaintiff Common School District No. 2 will be saddled * * * with a liability for the bonded indebtedness of defendant District No. 1 and its corporate Board of Directors, without an election being held by the resident taxpayers only of said Common School District No. 2 to determine whether or not they wish to assume said indebtedness.”

Sec. 3, Art. 8 of the Constitution, supra, provides that “ * * * No * * * school district * * * shall incur any indebtedness * * * for any purpose * * * without the assent of two-thirds of the qualified electors * * * voting at an election to be held for that purpose * *.”

Sec. 33-909, I.C. provides how an indebtedness exceeding the income and revenue provided for it in such year may be authorized and limits the indebtedness to a percentage of the value of the taxable property in the district.

Persons authorized to vote at a bond election must be qualified electors of the district and taxpayers, and before the bonds can be issued, two-thirds of such electors must vote in favor thereof.

The above quoted constitutional provisions either apply to all areas of the state, excluding specially chartered subdivisions, incorporated and chartered prior to the time the Constitution was adopted, or such provisions apply to no- one and no area.

To hold that the safeguards and proceedings for creating indebtedness are not applicable to the respondent districts is, in effect, suspending and setting aside the Constitution as to some areas of the State and limiting in application the constitutional inhibitions. In other words, the Constitution is amended by a legislative act.

If the contention of the appellants is to be upheld, it is obvious that Sec. 3, Art. 8, and Sec. 19, Art. 3, of the Constitution above quoted are, in effect, meaningless. By a process of including small areas or little pieces of contiguous or adjacent .territory, there is no reason, in the course of time, why the appellant school district could not increase its area and boundaries so as to include all of Nez Perce County. Areas that did not want to be incorporated in appellant school district could be gerrymandered and divided into small areas favorable to the proposal and thus be incorporated into appellant school district.

It was never the intention of the framers of the constitution that specially chartered municipal subdivisions of the State could be extended to include other areas in the manner attempted here, and such extension is specifically prohibited by Sec. 2, of Art. 11 of the Constitution.

Cases cited to sustain the majority opinion: Wiggin v. City of Lewiston, 8 Idaho 527, 69 P. 286; Butler v. City of Lewiston, 11 Idaho 393, 83 P. 234; Boise City Nat. Bank v. Boise City, 15 Idaho 792, 100 P. 93; Howard v. Ind. School Dist. No. 1, 17 Idaho 537, 106 P. 692; Bagley v. Gilbert, 63 Idaho 494, 122 P.2d 227; Clark v. Alloway, 67 Idaho 32, 170 P.2d 425, dealing with internal affairs and amendments to special charters granted prior to the time the constitution was adopted are not in point here; nor are the dire and calamitous effects of an adverse ruling pictured by the appellants persuasive.

Section 3, Chap. 92, 1939 Session Laws, under which the proceedings for annexation were had, provides as follows: “Thereafter the persons and property in said annexed territory shall be subject to all of the benefits, obligations and burdens of said district, and shall become part and parcel thereof, and said Independent School District No. 1 shall become vested with the title and right to possession of all of the school property, both real and personal, within the territory so annexed, and shall assume all the school indebtedness and obligations thereof.” (Emphasis supplied.)

The petition in this case specifically alleged, as above set out, that the annexed territory (District No. 2) would be compelled to assume its proportional part of the indebtedness of the Lewiston School District, and the case was argued by all parties, including amicus curiae, on the theory that such would be the case; and that the words “to all of the benefitSj obligations and burdens of said district” (emphasis supplied) included the bonded indebtedness and other obligations of the annexing district. I am of the opinion that the school districts involved, also the attorneys who argued the case, presumed that Common School District No. 2 would have.to pay its part of the obligations of Independent School District No. 1, including bonded indebtedness. The section above quoted does not except bonded indebtedness.

The statute above quoted is without am--biguity and the question of statutory construction was not raised, briefed or argued by appellants or by amicus curiae. It seems to me that the statute is clear and plain, and construing it as done in the majority opinion, reads into the statute exceptions not within its meaning.

The words “all * * * obligations and burdens * * * ” (emphasis supplied) are all inclusive, and the words “all * * * obligations and burdens” were intended to and do include bonded indebtedness of the annexing district. In other words, there are not two interpretations that can be put on the statute. Where a statute is not reasonably susceptible of different interpretations, the wording cannot be changed, added to or subtracted from by a process of construction.

The court should give effect to the legislative intent, and the statute in question, by plain language and without ambiguity, includes all obligations and liabilities of the annexing district, including bond issues.

The majority opinion concludes that if the section above quoted included bond indebtedness as a part of the obligations and burdens of the annexing district, it would be unconstitutional. I am unable to construe the statute in question to mean otherwise. ■

Further, the time to act on the petition presented to the Lewiston School District, and the time for holding the contemplated election, as provided for in the statute has now passed, and no election provided for by the statute under the pending proceedings can now be had. The order appealed from should be affirmed.