Board of Park Com'rs of City of Marshalltown v. City of Marshalltown

• Decision Date: 05 May 1953
• Docket Number: No. 48237,48237
• Citation: 58 N.W.2d 394,244 Iowa 844
• Parties: BOARD OF PARK COM'RS OF CITY OF MARSHALLTOWN v. CITY OF MARSHALLTOWN.
• Court: Iowa Supreme Court

Page 394

58 N.W.2d 394

244 Iowa 844

BOARD OF PARK COM'RS OF CITY OF MARSHALLTOWN v. CITY OF MARSHALLTOWN.

No. 48237.

Supreme Court of Iowa.

May 5, 1953.

R. A. Rockhill, Marshalltown, for appellant.

Haupert & Robertson, Marshalltown, for appellee.

GARFIELD, Justice.

We quote from the brief of defendant-appellant city its Statement of the Case: 'This is an action for declaratory judgment by the Board of Park Commissioners of the City of Marshalltown against the city to have determined the authority of said board to certify and have levied by the council of said city a tax for permanent park improvements as provided by section 370.7, Code, 1950 [I.C.A.]. Defendant city claims the levy of such a tax is subject to council control as to the amount thereof certified for levy and collection under the provisions of paragraph 8, section 11, chapter 159, Acts of the 54th General Assembly and it is not mandatory on the council to certify in full the amount demanded for levy and collection by said board under the authority of Code section 370.7 [I.C.A.].

'The trial court held Code section 370.7 [I.C.A.] was not repealed by chapter 159, Laws of the 54th General Assembly and by paragraph 8, section 11 of said chapter and it was mandatory on the city council to certify and levy for collection the amount of tax demanded by said board for permanent park improvements authorized under Code section 370.7 [I.C.A.].'

Defendant's brief says these questions are presented by this appeal:

'1. Whether plaintiff board is an independent municipal corporation with co-ordinate and co-equal power with defendant city.

'2. Whether an authorization to levy a limited tax for a fixed term of years under Code section 370.7, I.C.A., is, by the subsequent enactment of chapter 159, Laws of 54th General Assembly, so changed or modified as to be subject to discretionary determination of the city council as to amount certified for levy and collection as other taxes for municipal purposes.

'3. Whether plaintiff board as a subordinate board of the city has legal power or authority to maintain this action against defendant and therefore was within the jurisdiction of the district court to render a declaratory judgment as prayed by plaintiff.'

We will consider these questions in the order of their importance. We will first consider the second of the above questions, then the third, and finally the first.

I. Defendant's argument on the second question is preceded by this proposition: 'That chapter 159, Laws 54th General Assembly, modified the tax levying and certifying powers of plaintiff board authorized under Code sections 370.7, 370.8 [I.C.A.] so as to make it subject to discretionary control of defendant's council.' We hold defendant is not entitled to a reversal on this proposition or on the other two propositions here argued.

The facts were stipulated or admitted in the pleadings. At the regular city election on March 26, 1951, plaintiff board, pursuant to Code section 370.7, I.C.A., submitted to the electors the question of the levy of a further additional tax for park purposes not to exceed one mill on the dollar on all taxable property in the city for not exceeding ten years, to be used for the sole purpose of purchasing lands and permanently improving the same and lands theretofore acquired for park purposes, as provided in Code section 370.7, I.C.A. The proposition carried by a vote of 3005 to 1957.

Plaintiff board certified to the city council in 1951 the additional tax authorized by the electors. The record does not show whether such certification was in mills or dollars nor the amount thereof. Defendant's argument states it was 'a full mill.' It is not claimed the amount certified exceeded that authorized by the voters or needed by plaintiff board. The council refused to permit the amount plaintiff certified to be levied and only a part thereof (the record does not show what part) was levied.

The case was not heard until April, 1952. It was stipulated relief was not sought based upon any certification by plaintiff in 1951, but a declaratory judgment was asked as to plaintiff's rights in the future in the certification and levy of the tax authorized by the voters. It is apparent defendant contends it has the same right in future years as it claimed in 1951 to review the requests of plaintiff for the amount of taxes certified for permanent park improvements under Code section 370.8, I.C.A., and (to quote defendant's argument) it is 'not mandatory that the council certify the full amount included by plaintiff in its proposed budget for' such improvements.

Code section 370.6, I.C.A., provides for the certification and levy of a tax for general park purposes. It is not here involved. Section 370.7, under which plaintiff board proceeded in obtaining the vote of the electors, states: 'Additional tax levy. In cities having a population of over twenty-five hundred, said board is further authorized to submit to the electors * * * the question of the levy of a further additional tax for park purposes, not to exceed one and one-fourth mills on the dollar on all taxable property of the city over any term of years not exceeding thirty, to be used for the sole and only purpose of purchasing and paying for real estate and permanently improving the same and lands theretofore acquired for park purposes.'

Before the enactment of chapter 159, Acts 54th General Assembly, Code section 370.8, I.C.A. under which plaintiff certified the additional tax here in dispute, provided: 'Certification and collection. When a majority of the electors of said city at any such election shall have declared in favor thereof, said board shall certify to the county auditor in each year and cause to be collected such additional tax during all of the years for which the same has been approved and ordered by the voters.'

Section 370.8 was amended by section 38, chapter 159, Acts 54th General Assembly, effective July 4, 1951, by striking the words 'county auditor,' italicized by us, and inserting in lieu thereof the word 'council.' Thus under 370.8 as amended the board is required to certify to the council, not the county auditor, the additional tax voted by the electors pursuant to section 370.7.

Disregarding the two contentions later to be considered, it is clear and seems to be conceded there should be an affirmance unless Code section 370.8, I.C.A., is repealed or superseded by chapter 159, Acts 54th General Assembly. Section 370.8 places the mandatory duty upon the board to certify and cause to be collected the additional tax 'during all of the years for which the same has been approved and ordered by the voters.'

It is significant that Code section 370.6, I.C.A., providing for the certification by the board and levy by the council of the tax for general park purposes states the council 'shall levy such tax or so much thereof as it may deem necessary to promote park interests * * *.' (Italics added.) Section 370.8 contains no similar provision applicable to the additional tax 'approved and ordered by the voters' pursuant to section 370.7 and certified to the council by the board under 370.8. The effect of defendant's argument is an attempt to read into section 370.8 such a provision as we have italicized from 370.6.

We are not persuaded that section 370.8 is repealed or otherwise superseded by chapter 159, Acts 54th General Assembly. It is not claimed chapter 159 expressly repeals section 370.8 although it expressly repeals Code chapters 404 and 406, I.C.A., and, according to our count, 46 other Code sections, and amends 58 Code sections, that are referred to by number. Alexander v. Town of Montezuma, 243 Iowa 251, 51 N.W.2d 456, 459, which explains the underlying scheme and purpose of chapter 159, states the chapter repeals Code chapters 404 and 406, I.C.A., 'and refers to, amends, and repeals over 100 other Code sections.'

Indeed, as we have observed, section 38 of chapter 159 amends this very Code section 370.8, I.C.A., above quoted, by substituting 'council' for 'county auditor.' It is scarcely conceivable the 54th General Assembly would amend section 370.8 in this respect if the same legislature intended by the same act to repeal or supersede this section as defendant contends. There was no reason for the amendment unless the section, as amended, was to continue in force.

It is also significant that section 39 of chapter 159 expressly repeals Code sections 370.25 and 370.26, I.C.A., and sections 40, 41, and 42 of chapter 159 amend Code sections 370.28, 370.29, and 370.30, respectively, in the same way that section 38, chapter 159, amends Code section 370.8, I.C.A. And section 43 of chapter 159, amends Code section 370.31, I.C.A. All these Code sections are in Code chapter 370, I.C.A.

Since it is not asserted chapter 159 expressly repeals section 370.8, defendant necessarily relies upon the claim the chapter repeals 370.8 by implication. As defendant concedes in argument, repeals by implication are not favored by the courts. They will not be upheld unless the intent to repeal clearly and unmistakably appears from the language used and such a holding is absolutely necessary. The general rule is that if by any fair and reasonable construction prior and later statutes can be reconciled both shall stand. Yarn v. City of Des Moines, 243 Iowa 991, 54 N.W.2d 439, 442, and citations.

The rule that repeals by implication are not favored has special application to important public statutes of long standing. Ibid and citations. Section 370.8 in its present form was enacted in 1919 as paragraph 4, section 1, chapter 312, Acts 38th General Assembly, and somewhat similar preceding statutes were enacted much earlier.

There is no language in chapter 159 from which an intent to repeal section 370.8 clearly and unmistakably appears. The change heretofore mentioned in section 370.8 under which the board certifies the additional tax to the council rather than to the...