Lambe v. McCormick

• Decision Date: 14 February 1902
• Citation: Lambe v. McCormick, 116 Iowa 169, 89 N.W. 241 (Iowa 1902)
• Parties: LAMBE, COUNTY TREASURER, ET AL. v. MCCORMICK (TWO CASES). LAMBE, COUNTY TREASURER, ET AL. v. GAMMON. LAMBE, COUNTY TREASURER, ET AL. v. MURDOCK. LAMBE, COUNTY TREASURER, ET AL. v. TOBIN.
• Court: Iowa Supreme Court

116 Iowa 169

89 N.W. 241

LAMBE, COUNTY TREASURER, ET AL.

v.MCCORMICK (TWO CASES).

LAMBE, COUNTY TREASURER, ET AL.

v.GAMMON.

LAMBE, COUNTY TREASURER, ET AL.

v.MURDOCK.

LAMBE, COUNTY TREASURER, ET AL.

v.TOBIN.

Supreme Court of Iowa.

Feb. 14, 1902.

Appeal from district court, Palo Alto county; A. D. Bailie, Judge.

In each of these casesthe defendant appealed to the district court from the action of the treasurer of Palo Alto county in assessing him for omitted property under chapter 50 of the Acts of the 28th General Assembly.In each case a demurrer to a pleading setting out the liability of defendant for the taxes thus assessed was sustained, and the plaintiffs appeal.The records in the several cases are identical, save as to the amounts of taxes assessed.The arguments on behalf of appellants are identical in the five cases, as are also the arguments for the respective defendants, although signed by different attorneys.The cases may therefore be determined together.Reversed.E. A. Morling and F. C. Davidson, for appellants.

Carr & Parker, B. E. Kelly, C. E. Cohoon, and Thomas O'Connor, for appellees.

McCLAIN, J.

Considerable portions of the arguments on each side relate to the constitutionality of Code, § 1374, authorizing county treasurers, within five years of the date on which assessments should have been made, to bring action for taxes on property subject to taxation which has been withheld, overlooked, or from any other cause is not listed and assessed; and to the question whether that section should be applied to cases where property was so withheld or overlooked and not assessed prior to the taking effect of the present Code (1897), in which the provisions of this section were first enacted.These questions have been fully considered in the case of Galusha v. Wendt, 87 N. W. 512, decided by this court at the same term at which the cases now before us were submitted.It is unnecessary to review these questions.The conclusions of the court in that case were adverse to the position taken by appellees.

These cases involve, however, other questions than those discussed in Galusha v. Wendt, supra.In that case the action was brought prior to the taking effect of chapter 50, Acts28th Gen. Assem., while in these cases the proceedings are based upon the first section of that statute, which reads as follows: “The board of supervisors of any county may contract in writing with any person to assist the proper officers in the discovery of property not listed and assessed as required by law.Before listing the property discovered, the treasurer shall give the person in whose name it is proposed to assess the same, or his agent, ten days' notice thereof by registered letter addressed to him at his usual place of residence, fixing the time and place where objection to such proposed listing and assessment may be made.An appeal may be taken to the district court from final action of the treasurer by serving written notice upon him and otherwise proceeding as provided in section 1373 of the Code.”The other sections of the statute relate to contracts with persons to assist the proper officers in the discovery of property not listed and assessed as provided by law, and they are of no significance here.The principal contention of appellees is that the assessments by the treasurer sought to be established in these cases were made under the provisions of Code, § 1374, and that, as this section is unconstitutional (as claimed), and, at any rate, not applicable in case of property previously omitted, the whole proceeding must fail.But, as we have held that the section is constitutional and applicable to property omitted from assessment before its enactment, this position is, of course, not tenable.But appellees further argue that section 1374 was repealed by implication by the enactment of 28th Gen. Assem. c. 50, and this is the principal question which we now have to decide.There is no express repeal, and, if any repeal has resulted from the enactment of the later statute, it must be either because its provisions are inconsistent with those of the Code section, or because the intention of the legislature in the enactment of the later statute was to revise the entire subject-matter, and supersede the section in question.It is not necessary to cite a multitude of authorities to the effect that repeals by implication are not favored, and that, if the section of the Code and the later statute can be construed together, they will be so construed, and each will be given its proper effect.The rules of interpretation adopted in such cases are sufficiently stated and illustrated in U. S. v. Freeman, 3 How. 556, 564, 11 L. Ed. 724;State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313;Mersereau v. Mersereau Co., 51 N. J. Eq. 382, 26 Atl. 682;Barden v. Wells, 14 Mont. 462, 36 Pac. 1076;City of Council Bluffs v. Waterman, 86 Iowa, 688, 53 N. W. 289;Sherman v. City of Des Moines, 100 Iowa, 88, 69 N. W. 410;City of Dubuque v. Harrison, 34 Iowa, 163.It is hardly necessary to say that there is nothing in the language of the later act at all inconsistent with the section of the Code.If the legislature had in mind at the time of passing the later act that the section of the Code was a valid and subsisting provision, then it is plain that the intention was to amplify that section, and give to the taxpayer notice beforehand of the action of the treasurer in making an assessment of omitted property, and the right to have such assessment reviewed by appeal, in the same way that the action of the board of equalization in fixing the proper amount of an original assessment may be reviewed; thus removing possible objections to or injustice in the procedure authorized by the Code section.The more cogent argument of appellees is, however, that the legislature intended to ignore Code, § 1374, entirely, and supersede it by other provisions for reaching omitted property.In the first place, however, we cannot accede to the suggestion that the legislature assumed Code, § 1374, to be wholly unconstitutional and invalid.Having already determined in the previous case that this section is valid, we are not justified in assuming that the legislature made an assumption with reference to that section which we have held to be unfounded.The argument, stated as favorably as possible to the appellees, is this: That, inasmuch as Code, § 1385, provides for the correction of errors by the county auditor with reference to the assessment of any property, and Code, § 1398, provides for the assessment of omitted real property by the county treasurer, the 28th general assembly, by enacting chapter 47, which amplifies Code, § 1385, and chapter 50, which may be construed as relating to Code, § 1398, intended to complete and perfect a system for reaching omitted property, such as would render Code, § 1374, unnecessary, and was therefore intended to supersede it.But ...