Howard v. Hulbert

• Decision Date: 07 December 1901
• Docket Number: 12,539
• Parties: MORGAN HOWARD et al. v. W. S. HULBERT
• Court: Kansas Supreme Court

66 P. 1041

63 Kan. 793

MORGAN HOWARD et al. v. W. S. HULBERT

No. 12,539

Supreme Court of Kansas

December 7, 1901

Decided July, 1901.

Error from Leavenworth district court; LOUIS A. MYERS, judge.

Judgment reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. STATUTORY CONSTRUCTION -- Repeals by Implication. While the rule is that a general act will not repeal by implication a prior special one applicable to the same matter, yet this is not an invariable rule; and where, from the general act, it is clearly apparent that the legislature intended it to apply to the matter theretofore included in the terms of the special act, it will repeal such special act by implication.

2. STATUTORY CONSTRUCTION -- Negative Terms. The reasons for such repeal are much stronger where the general act is couched in negative terms.

3. STATUTORY CONSTRUCTION -- Leavenworth County Special-tax Act. A special act permitting the county commissioners of Leavenworth county to levy on the taxable property of that county for current expenses a tax not to exceed five and one-half mills on the dollar is repealed by implication by a general act of later date, which provides that the county commissioners of any county shall not levy for current expenses in expenses in excess of five mills in counties having over nine millions of taxable property, the county of Leavenworth falling in that class.

John C Douglass, for plaintiffs in error.

F. P. Harkness, and Dawes & Wulfekuhler, for defendant in error.

CUNNINGHAM, J. GREENE, POLLOCK, JJ., concurring.

OPINION

CUNNINGHAM, J.:

This was an action in ejectment, based upon a tax deed issued in 1895 by the county clerk of Leavenworth county. The defendants contended that the deed was void because the tax levy of 1890, upon which the sale was based, exceeded the power of the county commissioners.

Section 181 of chapter 25, General Statutes of 1868, provided:

"In counties where the taxable property is less than five millions of dollars, the board of county commissioners shall not levy a tax for the current expenses of any one year of over one per cent. on the dollar of such valuation; and in counties where the taxable property is five millions of dollars or upwards, the tax for such purposes shall not exceed one-half of one per cent. upon such valuation in any one year, unless by a direct vote of the electors of the county."

In 1879 a special act of the legislature was passed authorizing the county commissioners of Leavenworth county to levy upon all taxable property in the county for the year 1879, and for each subsequent year, for current expenses, five and one-half mills on the dollar. The law remained in this condition until 1885, when section 181 of chapter 25, General Statutes of 1868, was amended by an act (Laws 1885, ch. 110; Gen. Stat. 1901, § 1853,) the title and body of which are as follows:

"An act to amend an act entitled 'An act relating to counties and county officers,' being chapter twenty-five of the General Statutes of eighteen hundred and sixty-eight, and to repeal section one hundred and eighty-one thereof.

"Be it enacted by the Legislature of the State of Kansas:

"SECTION 1. That section one hundred and eighty-one of chapter twenty-five of the General Statutes of eighteen hundred and sixty-eight be amended so as to read as follows: Sec. 181. The board of county commissioners of any county shall not levy upon the taxable property of such county a tax for current expenses of said county of any one year in excess of the following amounts: Upon a valuation of five million dollars and under, one per cent.; over five millions and under six millions, eight and one-half mills; over six millions and under seven millions, seven and one-half mills; over seven millions and under eight millions, six and one-half mills; over eight millions and under nine millions, five and three-fourths mills; over nine millions, one-half of one per cent.; provided, that the electors of the county, by a direct vote, may order an increase in such levies.

"SEC. 2. That original section one hundred and eighty-one of chapter twenty-five of the General Statutes of eighteen hundred and sixty-eight be and the same is hereby repealed."

This act was incorporated into chapter 25 of the General Statutes of 1889, and was the general law in force in 1890, at the time of the levy for which the land in question was sold. The levy in question was greater than one-half of one per cent. for current expenses, and Leavenworth county had more than nine millions of taxable property.

The question involved in this discussion is which law governed in the matter of the levy of the tax of 1890 in Leavenworth county, the special act of 1879 or the general law of 1885. If the latter, then the levy was in excess of that authorized by law, and the tax deed was void when attacked as it was. More specifically to state it, Did the general law of 1885 repeal, by implication, the special act of 1879? The court below held that it did not, and that the tax deed under which the defendant in error claimed was good, and directed judgment in his favor.

The books unquestionably lay it down as a general rule that a general law does not by implication repeal a special act; and the argument in support of this rule is that, where the mind of the legislator has been turned toward the details of a subject and has acted upon it, any subsequent general legislation must be construed and applied with reference to and in the light of, the special matters already provided for. This rule comes to us with our common law. Greater reason for it manifestly exists under the English system, so largely of private grants and provisions, than under ours, more specifically hedged about with...