People ex rel. Springer v. Lytle

| Idaho | Aug 15, 1867

Cummins, J.,

delivered the opinion of the court,

Mo-Bbide, O. J., concurring.

On January 7, 1867, the legislative assembly passed a bill, notwithstanding the governor’s objections to the same, creating the office of tax collector for the county of Owyhee. Prior to that time, tbe sheriffs in their respective counties* except in that of Boise* were ex officio tax collectors. The act above rdferred to was designed to take away these duties and erect them into a separate office. On the eleventh of the same month the revenue act was passed, in which the following provision is found, at the end of section .6: “Provided, farther, That in all other cases of the collection of taxes the sheriff of the county shall be collector of all taxes except in the county of Boise, in which county the assessor shall be collector of all poll taxes, per capita and hospital taxes, and all taxes upon real and personal property.” By the provisions of this section the assessor is the collector of all poll, per capita, and hospital taxes, and of personal property taxes in certain specified cases until the completion and return of his assessment, and in “ all other cases” it is made the duty of the sheriff to perform this service, except in the single county of Boise. The first clause of section 27 of this act reads, that “all acts and parts of acts inconsistent herewith are hereby repealed.” It will be observed that this act was passed four days after the passage of the act creating the office of tax collector for the county of Owyhee.

The first question presented by the record for determination to which our attention has been directed is, Do these provisions of the revenue act, which are above quoted, repeal the tax collector’s act for Owyhee county? It is urged by the defendant that as the latter act refers to a single subject and is special in its nature, therefore the provisions of a general law, such as the revenue act, do not necessarily repeal it; that the two acts may stand, together, and effect and force be given to both according to their spirit and intention. The abstract rule contended for by the defendant’s counsel is well stated by Mr. Sedgwick, in his treatise on statutory and constitutional law. On page 123 he says: “In regard to the mode in which laws may be repealed by subsequent legislation, it is laid down as a rule, that a general statute without negative words will not repeal the particular provisions of a former one, unless the two acts are irreconcilably inconsistent.” In fact,the counsel for defendant referred to this authority to sustain their position.

While in its main features the revenue act is general, yet section 27 of the old act, as amended by tbe sixth section of the act of the last session, is quite as special in its provisions as is the tax collector’s act, and both referring ta the same subject, to wit, the proper officers for collecting the several classes of taxes levied in each county, excepting that the one is to have no effect beyond a single county.

In order to give effect to the act, the benefits of which are claimed by the defendant, it would not only be necessary for us to engraft a second exception upon section 6 of the revenue act of January 11, 1867, which, by express terms, excepts Boise county alone, but it would be necessary to entirely disregard the negative words of the twenty-seventh section, a proposition repugnant to every sound rule recognized in the construction of statutes. It is well settled that a subsequent statute, which is clearly repugnant to a prior one, necessarily repeals the former, although it may not do so in terms, and even if the subsequent statute be not repugnant in all its provisions to tbe prior one, yet if the latter statute was clearly intended to provide tbe only rule that should govern in the case provided for, it repeals the previous act. (Vide Sedg. on Stat. and Const, L. 124.) It has been repeatedly held that every statute is by implication a repeal of all prior statutes so far as it is contrary and repugnant thereto, and that without any repealing canse. (Id. 125.)

In the case we are considering, these two acts are manifestly repugnant and irreconcilable. The one declares that the sheriff in all the counties, excepting one county only, shall collect all the taxes not collected by the assessor; and further declares that all acts and parts of acts which are inconsistent herewith are absolutely repealed; while the other act, of a prior date, declares that in Owyhee county, which is not the excepted county, the sheriff shall not collect these taxes. Can it be said, then, with any degree of candor, that these two acts are not repugnant in this respect ? If they are irreconcilably in conflict, as they most certainly are, then the rule universally recognized in cases of this character must prevail, that the last act in point of time must be held to repeal those of a prior date.

This case is not at all analogous to the examples or illustrations given, in reference to the rule we are discussing, by the authority above referred to, as, for instance, the ffase where, by an act o,f parliament, individuals were authorized to inclose and embank portions of the soil under the river Thames, and declared that such land should be “free-from all taxes and assessments whatever.” By the land tax act subsequently passed, it was provided in general terms that all the lands in the kingdom were subject to taxation; yet it was held that this latter act did not repeal the former, it being special in its character, while the latter, being general, necessarily included the exception created by the other. While this is a sound rule of interpretation, yet it in no way meets the case at bar, for in this case, as already observed, not only are the provisions of the two acts relating to the subject as to who shall collect the taxes inconsistent, the one requiring the sheriff in certain cases to perform the duty, and the other requiring a different ofleer altogether; but one expressly declares that all provision of law now existing repugnant to or inconsistent with the terms of this act are repealed, providing at the same time, as stated, that the sheriffs in nearly all the counties, including Owyhee, shall collect the taxes.

We, therefore, can give no other interpretation to the sixth and twenty-seventh sections of the revenue act of January 11, 1867, than that they repeal the act of the seventh of the same month, creating the oflice of tax collector for Owyhee county, and there is, of course, now7 no such office in that county, except as provided for in the former act. And hence we are of opinion that the relator "is entitled to exercise the powers, perform the duties, and receive the emoluments of the office of tax collector by virtue of his election as sheriff, on qualifying as required by law.

As this is sufficient upon which to dispose of this case in this court, we decline going into the remaining question, that of tbe appointing power, raised by tbe submission. As tbe two questions submitted in tbis controversy, under tbe tax collector’s act, are decided in tbe negative, judgment will be that eaeb party pay bis own costs, as per stipulation.

Judgment accordingly.