The City of Arkansas City v. Turner

• Decision Date: 16 July 1924
• Docket Number: 25,775
• Parties: THE CITY OF ARKANSAS CITY, Plaintiff, v. NORTON A. TURNER, State Auditor, Defendant
• Court: Kansas Supreme Court

226 P. 1009

116 Kan. 407

THE CITY OF ARKANSAS CITY, Plaintiff, v. NORTON A. TURNER, State Auditor, Defendant

No. 25,775

Supreme Court of Kansas

July 16, 1924

Decided January, 1924

Original action in mandamus. Opinion filed June 16, 1924. Writ allowed.

Writ allowed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONFLICTING STATUTES--Last Expression of Legislature Prevails. Where successive acts of the legislature covering the same subject matter are in irreconcilable conflict with each other, the one which is the last expression of the will of the legislature prevails.

2. SAME--Limitation of Bonded Indebtedness--Conflicting Statutes--Later Enactment Regarded as Existing Law. Where conflicting and irreconcilable provisions of prior legislative acts are included in a revision and codification of the general statutes, the legislative history of the separate conflicting acts should be traced, and the later enactment is to be regarded as the existing law, and the older of the conflicting and repugnant provisions, although carried forward into a revision of the general statutes which was adopted and approved by the legislature, is to be considered as repealed by implication.

3 SAME--R. S. 10-301 and R. S. 10-303 Irreconcilable--R. S. 10-301 Repealed--R. S. 10-303 Existing Law. Sections 10-301 and 10-303 of the Revised Statutes of 1923, both of which prescribe maximum limitations of bonded indebtedness, are in irreconcilable conflict, and as section 10-303 was the latest deliberate expression of the will of the legislature in enacting separate laws on that particular subject matter, such section 10-303 must prevail, and it altogether supersedes and repeals section 10-301, notwithstanding it was carried forward into the official revision and codification of the General Statutes of 1923.

L. C. Brown, of Arkansas City, Justin D. Bowersock, and Robert B. Frizzell, both of Kansas City, Mo., for the plaintiff.

Charles B. Griffith, attorney-general, and W. C. Ralston, assistant attorney-general, for the defendant.

OPINION

DAWSON, J.:

This is an original action in mandamus to require the state auditor to register a proposed issue of bonds to pay for certain internal improvements in Arkansas City. The plaintiff is a city of the second class, having taxable property within its limits aggregating $ 11,905,520 in assessed value; the city's aggregate bonded debt is $ 2,238,717.21, of which sum $ 1,576,046.77 is for improvements to be paid for eventually by the property particularly benefited thereby, and the remainder, $ 662,670.44, binds the city at large and is to be paid by general taxation. The proposed issue of bonds is for repaving certain streets and is for the sum of $ 38,209.64, and it seems to be agreed that all proceedings leading up to this proposed issue are regular in all respects except on the point that it may violate R. S. 10-301, which reads:

"Except for the refunding of outstanding debt, including outstanding bonds and matured coupons thereof, or judgment thereon, no bonds of any class or description shall hereafter be issued by any county, township, city, board of education or school district where the total bonded indebtedness of such county or township would thereby exceed one per cent of the assessment for taxation, as shown by the last finding and determination by the proper board of equalization, or where the total bonded indebtedness of such city, school district or board of education would thereby exceed one and one-fifth per cent of such assessment; but this restriction shall not apply to cities of the first class."

On account of this statutory provision, the auditor hesitates to register the bonds. Of course the aggregate bonded indebtedness of the plaintiff city is far in excess of one and one-fifth per cent of the city's total assessed valuation. It is in fact nearly 19 per cent. But there are some other pertinent provisions of statute. R. S. 10-303 reads:

"At no time shall all the bonded indebtedness of any city of the second or third class, for all purposes, exceed fifteen per cent of the assessed value of all the taxable property within such city as shown by the assessment books of the year next previous to the one in which a new issue of bonds is proposed to be made: Provided, That bonds issued to pay the cost of improvements for which a special tax is levied upon the property improved and bonds issued to pay the cost of improvement of intersections of streets, alleys and avenues, and that portion of the street immediately in front of city property, and bonds issued for general sewers, shall not be included in estimating said bonded indebtedness: Provided further, That the total bonded indebtedness of any such city for all purposes shall at no time exceed twenty-five per cent of the assessed value of all the taxable property within such city as shown by the assessment books of the year previous to the one in which a new issue of bonds is proposed to be made."

The conflict between R. S. 10-301 and R. S. 10-303 is manifest and apparent. Nor by any logic can this conflict be reconciled. One statute would limit the aggregate bonded debt to 1.2 per cent of the assessed valuation of the city, the other to 25 per cent. It is therefore necessary that we delve below the fact that they both appear in the Revised Statutes of 1923, so as to determine their proper relative potency as shown by their legislative history prior to the revision. R. S. 10-301 is part of an old statute having its inception in section 3, chapter 50, Laws of 1879. This section was amended by section 2, chapter 163, Laws of 1891, and again amended by section 1, chapter 113, Laws of 1893, and still later amended by section 2, chapter 62, Laws of 1909. R. S. 10-301 is but a fragment of this much-amended section. It should be noted that it last received the particular attention of the legislature in 1909. Turning next to the legislative history of R. S. 10-303, it seems to have originated in 1913 by enactment in section 1, chapter 126, Laws of 1913. It was amended by section 1, chapter 22, Laws of Special Session 1920, and it appears in R. S. 10-303 as thus amended in 1920. It is therefore clear that the latter section contains the last deliberate expression of the will of the legislature on the subject of setting a maximum limitation on the bonded debt of a city of the second class.

It is an elementary rule of statutory construction that where a manifest conflict between two statutes cannot be reconciled so as to give reasonable operative effect to both, the later enactment, as the last expression of the legislative will, controls, and the earlier enactment is deemed to have been repealed by implication.

"Rule followed that older statutes must be read in the light of later legislative enactments, and are subordinated thereto and must be harmonized therewith. Otherwise the older statutes must give way to the later enactments, and by implication are repealed thereby." (In re Moseley's Estate, 100 Kan. 495, syl. P 5, 164 P. 1073.)

In 25 R. C. L. 914 it is said:

"If an act is so repugnant to, or so contradictory of, or so irreconcilably in conflict with, a prior act that the two acts cannot be harmonized in order to effect the purpose of their enactment, the later act operates, without any repealing clause, as a repeal of the first to the extent of the irreconcilable inconsistency. A later statute without any repealing clause must be held to repeal an earlier one where under no reasonable hypothesis can the provisions of both be construed as coexisting."

It would therefore follow that R. S. 10-303 is the controlling and pertinent provision of law governing the proposed issue...