City of Reno v. Stoddard

• Decision Date: 13 September 1917
• Docket Number: 2293.
• Citation: 167 P. 317,40 Nev. 537
• Parties: CITY OF RENO v. STODDARD ET AL.
• Court: Nevada Supreme Court

167 P. 317

40 Nev. 537

CITY OF RENO v. STODDARD ET AL.

No. 2293.

Supreme Court of Nevada

September 13, 1917

Original mandamus by the City of Reno against C. H. Stoddard, as ex officio City Auditor, and D. W. Dunkle, as ex officio City Treasurer, of the City of Reno. Writ granted.

McCarran C.J., dissenting.

L. D Summerfield, City Atty., of Reno, for petitioner.

James T. Boyd and Roy W. Stoddard, both of Reno, for respondents.

SANDERS J.

The city of Reno petitions this court for a writ of mandamus to compel C. H. Stoddard, as ex officio auditor of said city and D. W. Dunkle, as ex officio treasurer thereof, to forthwith transfer all moneys held in a special fund to provide a sewage disposal plant or system for the said city to the general fund of said city. The facts are as follows:

The Legislature in 1915 (Stats. 1915, p. 256) amended subdivision 3 of section 10 of article 12 of the charter of the city of Reno. Section 5 of the amendatory act declares:

That section 10 of article 12, with other sections of the act, entitled "An act to incorporate the town of Reno, and to establish a city government therefor," approved March 16, 1903, as amended by St. 1905, p. 112, "are hereby amended so as to read as follows:

"Sec. 10. The city council, among other things, shall have power: * * *

Third. To levy and collect annually for general purposes a tax of not to exceed three-quarters of one per cent. upon the assessed value of all real and personal property within the city, and which is by law taxable for state and county purposes, fifteen per cent. of which shall be set aside in a special fund to provide for a sewage disposal plant or system for the city, and for no other purpose, until such time as said sewage disposal plant or system shall be actually installed and paid for; and in addition thereto to levy and collect annually a tax of not to exceed one-quarter of one per cent. upon the assessed value of all real and personal property within the city, which is by law taxable for state and county purposes, to provide a fund for the payment of the interest on the bonds of the city outstanding, and that may be lawfully issued and sold hereafter, and to provide a fund for the payment of the principal of such bonds, and for the redemption thereof as they shall mature, and for no other purpose."

The Legislature in 1917 (Stats. 1917, p. 102) again amended subdivision 3 of section 10 of article 12 of said act by declaring:

That said section "is hereby amended so as to read as follows:

"Sec. 10. The city council, among other things, shall have power: * * *

Third. To levy and collect annually for general purposes a tax of not to exceed three-quarters of one per cent. upon the assessed value of all real and personal property within the city and which is by law taxable for state and county purposes; and in addition thereto to levy and collect annually a tax of not to exceed one-quarter of one per cent. upon the assessed value of all real and personal property within the city, which is by law taxable for state and county purposes, to provide a fund for the payment of the interest on the bonds of the city outstanding, and that may be lawfully issued and sold hereafter, and to provide a fund for the payment of the principal of such bonds and for the redemption thereof as they shall mature, and for no other purpose: Provided, that all moneys now held in any special fund not herein provided for may be transferred to the general fund of the city."

It is admitted that from March 22, 1915, there has been set aside by respondents, as ex officio officers of said city, from taxes levied and collected for general purposes, in a special fund to provide for a sewage disposal plant or system for the city, in pursuance of the amendment of 1915, the sum of $25,895.40, and that this sum still remains in said special fund. It is admitted that no steps have been taken by the city since said date to erect a sewage disposal plant or system; that there are no creditors or persons who have any vested interest in or to said moneys so set aside; that from March 22, 1915, to and including March 13, 1917, the date of the last amendment, there were no funds of the city in its treasury, or elsewhere, derived from the levy or colletcion of a tax or taxes upon the assessed value of the real and personal property within said city, and segregated in accordance with the charter of said city, save and except such funds as were so derived and segregated in accordance with subdivision 3, § 10, of article 12, as amended by the Legislature in 1915 and 1917. On July 9, 1917, the city council of Reno ordered respondents to transfer all moneys held in said special fund to provide a sewage disposal plant or system for said city to the general fund. The respondents refused, and still refuse, to make the transfer. The petitioner bases its claim for the transfer of said moneys upon the amendatory act of 1917. The respondents justify their refusal to make the transfer upon the amendatory act of 1915, and are of the opinion that said moneys of right belong to said special fund, and under the limitations imposed by the act of 1915 cannot be transferred.

Cities are mere instrumentalities of the state, for the convenient administration of government; and their powers may be qualified, enlarged, or withdrawn at the pleasure of the Legislature, and the revenues of a city raised by taxation, though levied for specific public purposes, are so far subject to the legislative will that by it they may be applied to other uses of the municipality, subject, of course, to constitutional limitations. Board of Commissioners v. Lucas, 93 U.S. 108, 23 L.Ed. 822; People ex rel. v. Power, 25 Ill. 187; State ex rel. v. Board of Education, 141 Mo. 45, 41 S.W. 924; Cooley's Mun. Corps. § 25, p. 76; Dill. Mun. Corps. §§ 1381, 1382 (5th Ed.).

Our Constitution provides that:

"The Legislature shall provide for the organization of cities and towns by general laws; and restrict their powers of taxation, assessment, borrowing money, contracting debts, and loaning their credit, except for procuring supplies of water." Section 8, art. 8, Const. Nevada; section 345, Revised Laws.

It is obvious that the restrictions imposed by the amendatory act of 1915 are retained in the amendatory act of 1917, except the requirement that 15 per cent. of the tax levied and collected for general purposes shall be set aside in a special fund to provide for a sewage disposal plant or system for the city, which is omitted.

It is, no doubt, a well-settled rule in the construction of statutes that, where a statute provides (as in this case) that a certain former statute "is hereby amended so as to read as follows," any provision of such former statute which is not found in the new statute is repealed. There is a negative necessarily implied that such eliminated portion shall no longer be in force. 1 Sutherland, Stat. Const. § 246; Black on the Int. of Laws, § 133; 23 Am. and Eng. Enc. p. 735; State v. Horton, 21 Nev. 306, 30 P. 876 (concurring opinion); Ratcliff v. People, 22 Colo. 75, 43 P. 553; State v. Routh, 61 Minn. 205, 63 N.W. 621; Helena v. Rogan, 27 Mont. 135, 69 P. 709; Guaranty Trust Co. v. Troy Steel Co., 33 Misc. 484, 68 N.Y.S. 915; Fargo v. Ross, 11 N.D. 369, 92 N.W. 449; Somers v. Commonwealth, 97 Va. 759, 33 S.E. 384; Mudgett v. Liebes, 14 Wash. 482, 45 P. 19; Ashland Water Company v. Ashland County, 87 Wis. 209, 58 N.W. 235.

The omitted provision being repealed or abrogated by its omission from the act of 1917, the question arises: What becomes of the special fund of $25,895.40 already set aside to provide for a sewage disposal plant or system for the city? This is answered by the proviso ingrafted on the amendatory act of 1917:

"Provided, that all moneys now held in any special fund not herein provided for may be transferred to the general fund of the city."

It is, in effect, admitted by the pleadings that the language of the proviso can relate only to the "special fund" authorized by the act of 1915. The proviso therefore is an affirmative declaration to the effect that the city may transfer the fund in question to the general fund, and it is so manifesly inconsistent with and repugnant to the former act, when the city council has acted, that the two amendments cannot stand together.

It is unnecessary to extend this opinion, but it is insisted by respondents that by reason of contemporaneous legislation the city is brought under the ban of the general law relative to the pollution of the public streams of this state by the towns and cities thereof, and that, if the said special fund be transferred to the general fund, the city will be subjected to a suit to restrain it from polluting the waters of the Truckee river (Stats. 1917, p. 51), and will work great harm and threaten the health of the residents and public in general of the city of Reno.

The anti-pollution statutes are not involved in this proceeding, except as an incident to the cause which may have moved the Legislature in 1915 to exercise its prerogative and amend the charter of the city so as to provide a sewage disposal plant or system for the benefit of the inhabitants of the municipality, or prevent the pollution of the waters of the Truckee river. However provident the legislation of 1915 may have been, or however improvident the legislation of 1917 may be in the opinion of respondents, it constitutes no defense to this application for a writ of mandamus. The motives of the Legislature are not subject to judicial inquiry. Its will is supreme to that of the judgment of courts as to the wisdom or policy of its legislation.

The writ should be granted.

It is so ordered.

COLEMAN J. (concurring).

There is no doubt but that it...