Montana Attorney General Opinion 15-296

Opinion No. 296 School-High Schools-School Dishict.s -Special Levies-Budget. HELD : The legal voters of a joint school district who are taxpaying free- holders therein, have the power to au- thorize a lev~' to produce amounts in l'xcess of the maximums specifil'd in Sec. 5. Ch. liS. Laws of H1S3. Such nction is not in 'conflict with the Rph·it of the Budget Act. August !l, 19B::I. You state that, during the spring' of this rear. the trustees of Joint School District No.2 submitted to the electors a proposition for a special levy of six mills for high school pUll)OSeS in addi- tion to the amount required to make the $liO.OO per stUdent raised by the coun- ty-wide tax, and that at such election the proposition carried. \Ve assume tha t the election is valid in all other respects and that the only question sub- mitted to us is whether or not the tax- ·paying ele~tors haye the power to vote the addj,tionaJ tax upon themselyes. This power was given to the legal 'voters of any school district who are taxpaying freeholders therein. by sec- tions 1219 (nmended Chapter 120, Laws H)25), 1220, 1221, 1222 and 122.'3 (amended Chapter 120, La ws 1!l25) , all ill the Revised Codes of Montnnn of ]!l21. which constitute the genel'lll school law relating to the additional taxation for school purposes. These provisions nre still effective unless they hll\'e been expressly nr impliedly re- pealed. \Ve are unahle to find any ex- press repeal. It has been cnntended that the pro- ,-isions of Chapter 178, Laws of 1933, prodding a hudget system for high schoolR. impliedl~' repeals the general ~ehool laws pertnining to voting of additional le,-ies. \Vith this contentinn we cannot ngree. Repeals hy implica- tion are not favored. (Penwell '1". Board of County Commissionf'rs, 2:'l :\lont. ::\51. i'iH PIlC. 167: State ex reI. Ha~- v. Hind- ~on. 40 :\Iont. 353. 106 Pac. 362: State l'X reI. Wynne '-. Quinn, 40 :\Iont. 472. ]Oi Pac. 506.) It \\;\1 not be preRl1med thllt a subsequent act of the legislature intendcd to repeal a fOl'mer III w. unless til(' repugnancy hetween the twn act!< is irl'ccolJcilllhle. or the latter revise!< the whole suhject matter of the former. (.lohb v. l\Ieagher Cnunty, 20 Mnnt. 424. 5] Pac. 1034: State ex reI. Esgar y. District C{lUrt, 5H :\Iont_ 464, ]R.,) Pac. 1 iii. ) Aside from the general rules abo\'{' stated we find in Chapter liS. Laws of 1H3::1, an eXl}reSS declaration which is conclusive that no implied repeal was intended. In Section 5. and con- tllined within the identic-al sentence which fixed the limit nf $liO.OO per student, is the following prm-iso: "prn- vided. that nothing herein contained shall be construed as preventing any schnnl district from Yoting upon itself lin additional le'-y for high school pur- poses, in Ilccordance with the general schonl laws pertaining tn the voting of Ildditional levies by school districts." It is contended. hcca use of certain language in other 'parts of Chapter 171'. that tn permit the tllxpayers .to vote on an increased levy violates the spirit nf the budget law and defeats its pur- pose_ The legislature itself is most com- petent to define the limits of the pur- pose and spirit of the law, and it did so in unmistakable terms in the pl'Oyisn above quoted. Nor do we see why the hll(lget act Cllnnot he opera ted effec- ti,-el), \\;th such an additional levy. The additional levy \VIIS authori:r.ed long prior to the time for making the pre- liminary budget. 'l'he school trustees can (and they do) consider the avail- able re'-enue in making their prelim- inary budget and the budget board, as well, certainly must take the additional le'-y into consideration. Speaking generally on the spirit and purpose of the budget acts, we ha '-e never heard it advanced that they were intended to put a curb upon the tax- payers thelllsc!\-es. They were intended 202 OPI~IOXS OF THE ATTORXEY GE~ERAL to put a check upon public officers in the expenditure of moneys authorized under the general laws, and in the col- lection and expenditure of which the taxpayers have no direct vote. In our opinion the legal voters of the district, who are taxpaying free- holders therein, have the power to au- thorize a le,-y to produce amounts in excess of the maximums specified in Section 5, Chapter 178, J~a ws of 193:3.