Standrod v. Case

Decision Date01 July 1913
PartiesD. W. STANDROD and THOMAS F. TERRELL, Appellants, v. L. B. CASE and CITY OF POCATELLO, Respondents
CourtIdaho Supreme Court

CONSTRUCTION OF STATUTES-REPEAL BY IMPLICATION-POWER TO COLLECT A TAX LEVY-WARRANT INDEBTEDNESS-MUNICIPAL FINANCE-ANNUAL APPROPRIATION.

1. Sec 2268 of the Rev. Codes, as amended by the 1911 Session of the legislature (1911 Sess. Laws, p. 266), authorizing and empowering cities and villages to levy a tax for general revenue purposes not to exceed twenty mills on the dollar in any one year, repealed that part of sec. 2265 which fixed the maximum levy that might be made by cities and villages for general and incidental expenses at ten mills on the dollar.

2. Sec 18 of art. 3 of the constitution which provides that "No act shall be revised or amended by mere reference to its title, but the section as amended shall be set forth and published at full length," is intended to prohibit the amendment of a section of a statute by reference, and requires that the amended statute be set out at full length. This constitutional provision, however, does not prohibit an amendment by implication; that is, it does not prohibit or forbid the section as amended in accordance with the foregoing provision of the constitution having the effect of repealing or amending some other section of the statute with which the amended section is in irreconcilable conflict. It was never intended by sec. 18 of art. 3 of the constitution to require the legislature to set out at full length all the sections of the statute that might possibly be affected either by way of repeal or amendment of some provision thereof by reason of being in conflict with the amendment.

3. The power to levy a tax carries with it the implied power to employ the necessary means and procedure to execute the power and collect the revenue contemplated by the grant of power to make the levy.

4. Sec 2265 of the Rev. Codes requires the city council or board of trustees within the first quarter of each fiscal year to pass an ordinance to be termed the annual appropriation bill, and that such ordinance shall specify the objects and purposes for which the appropriations are made and amount appropriated for each object or purpose; and it also provides that if there be any outstanding warrant indebtedness, the council or board of trustees shall at the same time include in the annual appropriation "a special tax assessment of not to exceed ten mills on the dollar as shown by the last preceding assessment" for the purpose of paying such warrant indebtedness. This provision, however, does not contemplate an actual levy by the city authorities at the time of passing the appropriation bill for the purpose of paying the outstanding indebtedness, but it rather requires the council to make an appropriation of a lump sum for such purpose, and limits the amount that can be thus appropriated to not exceeding ten mills on the dollar on the assessed valuation of the city at the last preceding annual assessment.

5. A failure to include in the appropriation ordinance a specific appropriation for the payment of outstanding warrant indebtedness does not oust the city council of the power and authority to thereafter make such appropriation, or in case of a failure to do so prior to the time of certifying the tax levy for the city, it does not deprive them of the jurisdiction and power to certify a sufficient levy within the maximum prescribed by sec. 2265 to meet the outstanding warrant indebtedness of such municipality.

6. A public or official duty devolved by law on an officer, a discharge of which may be enforced by legal process, may be discharged without compulsion of such process, and although not done at the time prescribed, may be voluntarily done or peremptorily enforced at any time thereafter, and before it is too late for the doing thereof to accomplish the results intended to be accomplished by such act.

APPEAL from the District Court of the Fifth Judicial District for Bannock County. Hon. Ed. L. Bryan, Judge of the Seventh District, presiding.

Action to enjoin the collection of a tax. Judgment for defendants. Plaintiffs appeal. Affirmed.

Judgment affirmed. Costs awarded in favor of respondent.

Standrod & Terrell, for Appellants.

All presumptions are against an attempt to repeal a statute where express terms are not used. (36 Cyc. 1071, and note 26, p. 1072.)

Again, if both acts, by reasonable construction, can be construed together, both will be sustained. (36 Cyc. 1076, and note 39.)

If the later statute does not cover the entire field of the first, and fails to embrace within its terms a material portion of the first, it will not repeal so much of the first as is not included within its scope, but the two will be construed together, so far as the first still stands. (36 Cyc. 1079; State v. Omaha Elevator Co., 75 Neb. 637, 106 N.W. 979, 110 N.W. 874.)

In order to effect a repeal by implication, there must be a plain, unavoidable and irreconcilable repugnancy and conflict between the statutes. When two statutes cover, in whole or in part, the same subject matter, and are not absolutely irreconcilable, no purpose of repeal being clearly shown, the court, if possible, will give effect to both. (36 Cyc. 1077, and note 47; Hewett Lumber Co. v. Chessley, 68 Wash. 53, 122 P. 993.)

When there is a difference in the whole purview of two statutes apparently relating to the same subject, the former is not repealed. (In re Application to Issue Bonds, 33 Okla. 797, 127 P. 1065; Endlich on Stat. Const., sec. 741.)

Under such a constitutional provision as we have, a repeal by implication should not be permitted, unless the former statute, as a whole, was in absolute and irreconcilable conflict with the later statute, and the later statute related to the same subject matter as the former statute and covered the whole subject matter. ( George v. Lilliard, 106 Ky. 820, 51 S.W. 793, 1011; Blanfeld v. State, 103 Tenn. 593, 53 S.W. 1090; Durham v. State, 89 Tenn. 723, 18 S.W. 74; Frazier v. Ry. Co., 88 Tenn. 138, 12 S.W. 539.)

In case of doubt as to the proper construction, such doubt should be resolved in favor of the taxpayer. (Adams v. Board of Commrs. (Okl.), 130 P. 148; United States v. Wigglesworth, 2 Story, 369, F. Cas. No. 16,690; McNally v. Fields, 119 F. 445; Mayor v. Hartridge, 8 Ga. 30; Lewis' Sutherland, Stat. Const., 2d ed., sec. 535; Cooley on Taxation, 3d ed., p. 454, and cases cited.)

"The general rule of construction as applied to statutes relating to the assessment and collection of taxes is that what the law requires to be done for the benefit or protection of the taxpayer is mandatory, and cannot be considered directory merely." (28 Cyc. 1692; Moore v. People, 1 Idaho 662; People v. Florville, 207 Ill. 79, 69 N.E. 623; Riverside County v. Howell, 113 Ill. 256; People v. Peoria Ry. Co., 116 Ill. 410, 6 N.E. 459.)

"A municipal corporation possesses no inherent power to levy taxes. (Cooley, Taxation, p. 678.) It only possesses such power as is expressly conferred upon it by the legislature. Not only must the state confer the authority, but when the state has so conferred the authority and stated the manner of its performance, such power can only be performed substantially in the manner and mode pointed out." ( Wood v. City of Galveston, 76 Tex. 126, 13 S.W. 227; Clegg v. State, 42 Tex. 605; George v. Dean, 47 Tex. 73.)

Clark & Budge and P. C. O'Malley, for Respondents.

If the two statutes are in part positively repugnant to each other, the older statute is repealed by implication to the extent of the repugnance. (Territory v. Digneo, 15 N. M. 157, 103 P. 975; State ex rel. Great Northern R. Co. v. Railroad Commission, 52 Wash. 33, 100 P. 184; State v. Rogers, 22 Ore. 348, 30 P. 74; Springer v. Lytle, 1 Idaho 143; Board of Health v. Vineland (N. J.), 65 A. 174; Edalgo v. Southern Ry. Co., 129 Ga. 258, 58 S.E. 846; Ayers v. Chicago, 239 Ill. 237, 87 N.E. 1073.)

"While repeal of statutes by implication is not favored, yet, when the repugnance between two statutes is so plain that they cannot be reconciled, such repeal must follow." ( Freeman v. People, 242 Ill. 152, 89 N.E. 667; Dorrance v. Bristol Borough, 224 Pa. 464, 73 A. 1015; New York Life Ins. Co. v. Bradley, 83 S.C. 418, 65 S.E. 433; United States v. Balsara, 180 F. 694, 103 C. C. A. 660.)

"Where two inconsistent statutes relating to the same subject matter, but passed at different times, are to be construed, the latter statute governs, and the former is to be taken as repealed by implication." (Klauss v. Citizens' Nat. Bank, 46 Ind.App. 683, 93 N.E. 558; Heydecker v. Price, 136 Ill, App. 512; Smith v. Slaughter, 138 Ill.App. 46.)

Where a tax is legally levied and no procedure is provided for the collection of the same, it may be collected by an action in equity. (37 Cyc. 1233, 1242; City of Huntsville v. County of Madison, 166 Ala. 389, 52 So. 326.)

AILSHIE, C. J. Sullivan and Stewart, JJ., concur.

OPINION

AILSHIE, C. J.

This action was instituted by the appellant to enjoin and restrain the assessor and ex-officio tax collector of Bannock county and the city of Pocatello from the collection of certain taxes levied and assessed against the property of appellants, and to restrain and enjoin the assessor from selling the property for such tax. The suggestion made by counsel that it is rather an action to contest a tax levy by way of removal of a cloud from the title to the property is without merit. No such action would lie.

In the early part of August, 1912, the city council of the city of Pocatello passed Ordinance No. 265, known as the annual appropriation ordinance, and thereby made the following appropriations for the fiscal year...

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7 cases
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    ...from his necessarily implied powers as the collecting officer to render his acts in this regard unconstitutional ( Standrod v. Case, 24 Idaho 365, 133 P. 651) perforce did not make the statute unconstitutional, because it is not what the officer does but what the statute permits him reasona......
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