Penrose v. Whitacre

• Decision Date: 12 April 1944
• Docket Number: 3367.
• Citation: 147 P.2d 887,62 Nev. 239
• Parties: PENROSE et al. v. WHITACRE, County Treasurer, et al.
• Court: Nevada Supreme Court

147 P.2d 887

62 Nev. 239

PENROSE et al. v. WHITACRE, County Treasurer, et al.

No. 3367.

Supreme Court of Nevada

April 12, 1944

Appeal from District Court, First District, Lyon County; L. O Hawkins, Presiding Judge.

On rehearing.

Former decision adhered to, and judgment and order appealed from affirmed.

For former opinion, see 61 Nev. 440, 132 P.2d 609.

W. M. Kearney, of Reno, for appellant Walker River Irr. Dist.

Franklin H. Koehler, of Yerington, for appellant Walter Whitacre.

John R Ross, of Carson City, for respondents.

TABER Justice.

The last sentence of & 49 1/2 of the Irrigation District ACT, § 8066, N.C.L.1929, reads: "All the provisions of this act where applicable shall apply to such improvement districts." It is the contention of appellants that this provision makes each improvement district a complete irrigation district in itself, with each, every and all of the powers vested in the board to do each, every and all the acts which the main district is authorized to do. Whether this position is correct depends largely upon the meaning of the words "where applicable." In endeavoring to ascertain the true intent of the legislature, courts look to established rules of statutory construction. One of these is that where one statute adopts such provisions of another "as are applicable," the court, in determining what provisions are applicable, must construe into the adopting statute only such appropriate provisions of the prior act as will give force and effect to the later act; also that the latter adopts nothing of the statute referred to beyond the purposes of the new act. In re Garrett Transfer & Storage Co., 53 Idaho 200, 23 P.2d 739; In re Womelsdorf Alley, 8 Pa.Co.Ct.R. 207; State v. Board of Com'rs, 83 Kan. 199, 110 P. 92; Gadd v. McGuire, 69 Cal.App. 347, 231 P. 754; State v. Wendt, 225 Wis. 10, 273 N.W. 72; II Lewis' Sutherland on Statutory Construction, 2d Ed., § 405, pp. 787-789; Crawford's Statutory Construction, § 234, p. 440; 59 C.J., Statutes, § 624, pp. 1059, 1060, note 23; 25 R.C.L., Statutes, § 160, p. 908, note 11. It is reasonable to suppose that when the legislature undertakes to legislate specifically on a subject, it does so fully, and cannot be deemed to have incorporated into the law parts of a former law unless the language employed is such as to indicate with a reasonable degree of certainty that such was the legislative intention. State v. Wendt, 225 Wis. 10, 273 N.W. 72; State v. Frear, 144 Wis. 79, 128 N.W. 1068, 140 Am.St.Rep. 992; 59 C.J., Statutes, § 624, p. 1060, note 24; 25 R.C.L., Statutes, § 160, p. 908, note 10.

Had the legislature intended that the board of directors should have all the powers concerning improvement districts that it has concerning the irrigation district, it would have been a simple matter so to provide. This was done in the California Irrigation District Improvement Act of 1927, Deering's General Laws of California 1937, Volume One, Act 3877a, § 10 of which reads in part as follows: "Said board of directors and all other officers of said irrigation district shall have all the rights, powers and privileges concerning said improvement district, and lands thereof and the proceedings herein provided for, as such board may have concerning the irrigation district, of which it is a part ***." There is no such statutory provision in this state; and while it is possible that the legislature may have intended that the last sentence of § 49 1/2, § 8066, N.C.L.1929, should have the same meaning as § 10 of said California act, the language used in the former provision does not indicate with reasonable certainty that such was the intent.

A further reason why the court does not think that the proviso in § 14, § 8025, N.C.L.1929, is applicable to improvement districts is the amount of the aggregate debt limit prescribed therein for irrigation districts. It seems unreasonable to think that the legislature would prescribe as high an aggregate debt limit for each improvement district as that prescribed for the whole irrigation district. It may be contended, however, that there is no reason why the dollar per acre debt limit should not apply to each improvement district as well as to the irrigation district; but there is at least one reason why the court does not consider this argument sound. If it were sound, the board of directors could always put an assessment of $1 per acre on lands in an improvement district containing less than thirty thousand acres, but could not make an assessment in that amount on the lands of an irrigation district containing more than thirty thousand acres. In other words, in an improvement district containing 15,000 acres the board of directors could, without a special election, assess as high as $15,000, while in an irrigation district containing 60,000 acres the highest legal assessment, without such election, would be $30,000. In one case the assessment could be as high as $1 per acre, while in the other it could not be higher than 50 cents per acre. Such a construction would mean that the statute in this respect gives the board of directors of an irrigation district not only as much, but more power concerning improvement districts than concerning the irrigation district as a whole.

Appellants insist that this court arrived at an erroneous conclusion in holding that plaintiffs were entitled to invoke the aid of equity without first applying for relief to the Board of Correction. This matter was fully briefed and orally argued, and correctly disposed of in the original opinion, where the pertinent section of the act is quoted in full. § 8037, N.C.L.1929. From the provisions of that section it will be noted that the Board of Correction is authorized to "correct assessments so as to conform with the benefits apportioned as herein provided for to pay obligations incurred or make up deficiencies arising from any source, and also to apportion and distribute benefits and assessments by reason of additional land in the district becoming subject thereto ***." Said section further authorizes the Board to make such changes in the assessment book "as may be necessary to have it conform to the facts." The statute does not give the Board of Correction power to decide whether an assessment is void. Payette-Oregon Slope Irr. Dist. v. Coughanour, 162 Or. 458, 91 P.2d 526; 48 Am.Jur., Special or Local Assessments, § 296, p. 783; 67 C.J., Waters, § 960 note 81.

Reasserting their contention that injunction is not a proper remedy in the present case, appellants say that the following statement in Wells, Fargo & Co. v. Dayton, 11 Nev. 161, at page 166, is merely dictum insofar as it refers to cloud on title: "It must, in the language of the authorities, appear that the enforcement of the tax would lead to a multiplicity of suits, or produce irreparable injury; or, if the property is real estate, throw a cloud upon the title of the complainant, or there must be some allegation of fraud, before the aid of a court of equity can be invoked." Whether dictum or not, it is sound law and supported by the authorities. Yocum v. First Nat. Bank, 144 Ind. 272, 43 N.E. 231 (citing Wells, Fargo & Co. v. Dayton, supra); Laycock v. Lake Chelan Reclamation District, 124 Wash. 544, 214 P. 1054; Annotation, 22 L.R.A. 699, at page 705 (citing Wells, Fargo & Co. v. Dayton, supra). If plaintiffs had an adequate remedy at law, cloud on title would not justify injunctive relief, but as they have no adequate remedy at law, injunction will lie if the assessment is illegal. 61 C.J., Taxation, § 1437.

In the official 1939-40 budget of the Irrigation District and the four local improvement districts under the heading "Local Improvement District No. 2" we find this item: "Operation & Maintenance: Rate: $0.18 per acre". Appellants contend that the assessment complained of by plaintiffs was thus established as an operation and maintenance assessment which the board of directors of the Improvement District had the right and power to levy....