
    William Hibbs, Appellant, v. The Board of Directors and Secretary of the District Township of Adams, Mahaska County, Iowa, and the Individual Members of the Board.
    School Taxes: rescinding vote to levy. Where the electors of a school district vote to levy a. school house tax, they may rescind the same at the next regular election, when the tax has not been certified or levied by the school board, though one of the electors has commenced an action to compel the board to certify and levy such tax.
    Given, J., dissenting.
    
      Appeal from Mahaska, District Court. — Hon. D.- Hyan, Judge..
    Tuesday, January 23, 1900.
    Action to compel the defendants and their successor® in office to certify forthwith the amount of a tax voted for school-house purposes. The district court dismissed the plaintiff’s petition, and he appeals.
    
    Affirmed.
    
      L. C. Blanchard for appellant.
    Bolton, McCoy & Bolton and J. C. Williams for appellees.
   Deemer, J.

The district township of Adams is’ divided into eight subdistricts. In each of these there is "a school house The village of Lacey, a station on the Iowa Central Railroad, is situated near the west line of the township, about a mile and one-half from the school house in that sub-district, and has sixteen or seventeen pupils of school age. At the regular annual meeting of the electors of. the district township held March 8, 1897, it was voted “that there be levied a tax by Adams township to build a school house at Lacey, not to cost more than seven hundred ($700) dollars.” Twenty-one votes were cast in favor of the proposition and twelve against. This proceeding seems to have been entirely regular, but the board and secretary failed to certify the tax to the board of supervisors for levy and collection, as required by • law. On the twenty-ninth day of March, 1897, plaintiff commenced this action to compel the certification of the tax so voted. After the action was commenced, and on the first day of March, 1898, a petition was presented to the district township board, signed by thirteen electors and property owners of the township, asking the board to submit to the voters of the district township at the regular meeting to be held March 14, 1898, a proposition to rescind the tax voted at the previous annual meeting for the purpose of building the school house at or near Lacey. The board ordered the submission of the proposition at said meeting, and instructed -the secretary to insert 1(he same in the annual call for the election, which was accordingly done.At said annual meeting in the year 1898, and before the trial of the case in the court below, said proposition was voted on by ballot, fifty-six votes being cast, fifty-three of which were for rescinding and three against. While other matters are presented in answer, the only question for us to' consider is the effect of this vote rescinding the former vote authorizing the tax. That it was the duty of the boai;d to certify the tax voted at the 1897 meeting there can be no question:. But it did not do so, and, before any tax was in fact certified or levied, the electors, at a regular meeting, and by a large majority, voted to rescind the order voting the tax.' What effect is to be given to the order or vote of rescission ? Appellant contends that, having once voted the tax, the electors have no power of rescission. It is fundamental that electors of a district township- can only exercise such powers as are conferred by statute, either expressly or foy reasonable implication. Washington Dist. Tp. v. Thomas, 69 Iowa, 50. By section 2749 of the Code they are given .power “to vote a school-house tax, not exceeding ten mills on the dollar in any one year, for the purchase of grounds, «construction of school houses, the payment of debts contracted for the erection of school houses,” etc. Having the power to vote the tax- they, by necessary implication, have the right-to-rescind that -vote, unless by so doing they interfere with vested rights. Power to do necessarily implies the power not- to do; so that, having voted at one regular annual meeting to levy a school-house tax, they may, at a subsequent meeting, vote not to levy -a tax, unless, as we have said, some vested right has. intervened. Whenever the electors meet in annual session, and fail to voté a school-house tax, they virtually determine that no school-house tax shall be levied; •and the' mere fact that they have previously voted to levy ®uch a tax is not in itself controlling on the question of power. But it is said that, as soon as .the tax was voted by the electors, plaintiff and others, interested in securing the school house,' became possessed of a vested right-, which could snot be.interfered with by subsequent vote. Let us see what that right is., As has been stated, the board and its officers failed to certify the tax to the board of supervisors for levy and' collection. Plaintiff’s right was to bring action to compel them to do-so. Odendahl v. Russell, 86 Iowa, 673. No tax had, in fact, been levied, and none had been collected. The electors had simply determined that a tax should be levied, but, before anything had been done thereunder, they decided to rescind their action. True, plaintiff had commenced his action to compel the board of directors to certify the tax, but this did not give him a vested right. Huff v. Cook, 44 Iowa, 639. A case must be decided on the faefi as they appear at the time of trial. In Benjamin v. Malaka Dist. Tp. 50 Iowa, 648, relied on by appellant, the tax bad been levied and collected, and, as said in the opinion, “by tbe payment of taxes levied and collected for the purpos© of erecting tbe house, tbe plaintiff’s right thereto became-vested, and no subsequent action of tbe. electors without hi» consent could have tbe effect of depriving him of such right.’* Tbe distinction between that case and this is so apparent that we need not say more. Tbe trial court was right ia dismissing plaintiff’s petition, and the judgment is affirmed^

Granger, O. J., not sitting.

Given, J.

(dissenting). — I do not concur in the conclusion that tbe voters bad power to vote, in 1898, to rescind tbe tax regularly voted in 1897. Their powers being expressed in the statute, all powers not expressly or by reasonable implication conferred are excluded. Tbe power to rescind is-not expressly given, and, as I view it, may not be reasonably-implied. The power to vote on a question of a tax implies tbe power to vote against it, but not to vote to rescind it after it has been regularly authorized. As well may it b© implied that power to vote for or against a person for am-office confers power to rescind bis election regularly mad© by a subsequent vote of tbe electors. Tbe law provides hour the will of tbe voters shall be ascertained, and, when their will is expressed, as provided by law, nothing remains but to carry it into effect. It is said that tbe power to rescind' exists “unless by so doing they interfere with vested rights.’* While I do not agree that tbe power to rescind exists, yet,, conceding that it does until some adverse right is- vested,, bow is it '.in this case? By tbe vote of 1897 tbe tax was-regularly authorized, and it was then tbe duty of the defendants to cause that tax to be certified for levy and collection,, and to apply it to tbe authorized use; but this tbey wrongfully and obstinately refused to do. It is beyond question-that, as matters stood on March 29, 1897, tbe day plaintiff filed bis petition, be was entitled to an order commanding tbe certification of said tax.' It was because be, in common, with others alike interested, bad become vested with tbe right to have the tax certified, collected, and applied as authorized by the v.ote of 1897. This right was completely vested long before tbe attempted rescission, and, according to tbe opinion, barred a rescission. A, is regularly elected to an office, and thereby has become vested with tbe right to qualify and bold tbe office. Will it be .pretended that no right has become vested until be qualifies, and therefore the voters may rescind tbe election'before be. qualifies? I am of tbe opinion that no power is given to rescind tbe vote by which this tax was authorized; that.none such should be implied; and that, if it may, tbe right of plaintiff to have tbe tax certified, collected, and applied bad become a vested right. I do not think it was intended to introduce such an element of uncertainty into tbe administration of tbe affairs of school districts as may follow under sanction of this opinion.

Granger, O. J., not sitting.  