City of Aurora v. Board of County Commissioners

Chief Justice VOLLACK

dissenting:

The majority affirms the court of appeals, which held that Adams County can allocate revenue derived from the specific ownership tax to the Adams County Road and Bridge Fund, and thus partially avoid its statutory obligation to share its road and bridge tax revenues with the municipalities in its jurisdiction. Because the plain language of the governing statutory schemes expressly prohibits such allocation, I dissent.

I.

As this case involves numerous complex statutory schemes related to funding and taxation, I begin by engaging in a brief exposition on the relevant statutes. In Colorado, counties maintain county roads and bridges in the unincorporated portions of the counties. In order to finance the cost of such maintenance, counties are statutorily permitted to impose a road and bridge mill levy 1 all taxable property within the county, including property within municipal boundaries. § 43-2-203(2), 17 C.R.S. (1993).2 Municipalities, on the other hand, are solely responsible for maintenance of the roads and bridges within their municipal boundaries. §§ 43-2-123 to -124,17 C.R.S. (1993).3

A county’s road and bridge work is to be funded from a statutorily created county road and bridge fund. § 43-2-202, 17 C.R.S. *204(1993).4 The sources of moneys for the county road and bridge fund are specified in the statute as follows: (1) The road and bridge mill levy authorized by section 43-2-203; (2) all moneys received by the county from the state or federal governments for expenditures on roads and bridges; and (3) any other moneys which may become available to the county for such purpose. Section 43-2-202 also includes an apportionment provision 5 (the “sharebaek provision”) which provides that the municipalities located within a county are entitled to receive fifty percent of the revenue accruing to the county road and bridge fund deriving from the road and bridge mill levy authorized by section 43-2-203.

Article X, section 6, of the Colorado Constitution authorizes a specific ownership tax on certain vehicles.6 In order to carry out this constitutional mandate, the General Assembly has levied a tax upon certain vehicles owned by Colorado residents. §§ 42-3-101 to -144, 17 C.R.S. (1993). Neither the constitutional provision authorizing the specific ownership tax, nor the implementing statutes, specifically allocate the revenues from the tax to the county road and bridge fund or to road and bridge purposes.

The county general fund is created by section 30-25-105, 12A C.R.S. (1986), which states that the general fund “shall consist of all county revenue except that specifically allocated by law for other purposes.” Section 30-25-106, 12A C.R.S. (1986) specifically provides that the board of county commissioners is not authorized to appropriate money from the county general fund for expenditures for roads and bridges.7

II.

The dispute in the instant case surrounds Adams County’s practice of allocating a majority of the revenues it collects from its specific ownership tax to the Adams County Road and Bridge Fund. The effect of this allocation is that, since commencing this practice in 1992, Adams County has been able to drastically reduce its road and bridge mill levy, and thus correspondingly reduce the amount of revenue that it must allocate to the municipalities pursuant to the share-back provision. This is because the only revenue subject to the sharebaek provision from the Adams County Road and Bridge Fund is revenue from the road and bridge mill levy, and not revenue from the specific ownership tax.

Specifically, as part of the 1992 Adams County budget, the Adams County Board of Commissioners (the Board) allocated $3,400,-000 in revenue from the specific ownership *205tax to the Adams County Road and Bridge Fund. By allocating all of its specific ownership tax revenues to the Adams County Road and Bridge Fund, the Board was able to reduce Adams County’s road and bridge mill levy from 4.433 mills in 1991 to 2.233 mills in 1992. The corresponding decrease in net revenues from the levy amounted to $3,921,-266 for the 1992 fiscal year. Because the shareback provision only provides for allocation to the cities of the revenue from the road and mill levy, this action on the part of Adams County reduced its payment to the cities by more than $1,700,000 between 1991 and 1992. At the same time, Adams County was able to increase its total expenditures on county road services, services which do not benefit the municipalities.

III.

The majority holds that Adams County’s allocation of the specific ownership tax to the Adams County Road and Bridge Fund was not prohibited, and was in fact authorized, by statute. Maj. op. at 202-203. After an exhaustive analysis of the concededly sparse legislative history of the relevant statutory schemes, the majority concludes that the General Assembly did not intend to limit the sources from which counties could allocate revenue to their road and bridge funds. Maj. op. at 201-203.

I agree with the majority’s statement of the relevant rules of statutory construction. I dissent, however, because sections 30-25-105 and 30-25-106 manifestly prohibit the allocation of revenue from the specific ownership tax to the county road and bridge fund. I also dissent because I disagree with the majority’s conclusion that section 43-2-202 authorizes such allocation. Because these statutes are clear and unambiguous, any inquiry into the legislative intent behind such statutes is unnecessary.

Where the language of a statute is clear, a court must construe the statute as it is written. Dunton v. People, 898 P.2d 571, 573 (Colo.1995). Statutes in pari materia should be construed together and harmonized if possible. City of Lakewood v. Mavromatis, 817 P.2d 90, 96 (Colo.1991). In pari materia is a rule of statutory construction which requires that statutes relating to the same subject matter be construed together in order to .fully effectuate the intent of the legislature. Walgreen Co. v. Charnes, 819 P.2d 1039, 1043 (Colo.1991). A reviewing court should attempt to reconcile such statutes so as to give effect to all the provisions of each statute. M.S. v. People, 812 P.2d 632, 637 (Colo.1991).

A.

The statutes relevant to this case, when read together and given their plain and ordinary meaning, unambiguously dictate that the revenues derived from the specific ownership tax must be deposited into the county general fund, rather than the county road and bridge fund. The statute establishing the county general fund states that “[t]he county general fund shall consist of all county revenue except that specifically allocated by law for other purposes.” § 30-25-105 (emphasis added). Nowhere in the statutory scheme implementing the specific ownership tax is the tax “specifically allocated” for road and bridge purposes. §§ 42-3-101 to -144. Nor does the Colorado constitutional provision which mandates the specific ownership tax specify how the revenue from the tax must be used.8 Thus, section 30-25-105 read together with sections 42-3-101 to -144, dictates that the specific ownership tax must be deposited into the county general fund, rather than the county road and bridge fund.

Moreover, section 30-25-106 expressly prohibits the Board from utilizing revenue from the county general fund for expenditures for roads and bridges.9 Colorado Springs v. Board of County Comm’rs, 648 P.2d 671, 671-72 (Colo.App.1982); Greeley v. Board of County Comm’rs, 644 P.2d 76, 77 (Colo.App.1981). Although the majority correctly points out .that these eases are distinguishable because the specific ownership taxes in the instant case were never deposited in *206the Adams County General Fund, the majority’s interpretation of section 30-25-105 undermines the language of section 30-25-106. The Board could avoid the restrictions on the use of revenue from the county general fund by simply allocating revenue directly to one of the restricted purposes under section 30-25-106 instead of designating such revenue to the county general fund as required by section 30-25-105. The rules of statutory interpretation preclude us from interpreting a statute -within a particular scheme so as to render a related statute a nullity. People v. T.O., 696 P.2d 811, 817 (Colo.1985).

B.

The majority also holds that section 43-2-202 allows counties to allocate revenue from the specific ownership tax to the county road and bridge fund. Section 43-2-202 states that the sources of moneys for the road and bridge fund are as follows: (1) The road and bridge mill levy authorized by section 43-2-203; (2) all moneys received by the county from the state or federal governments for expenditures on roads and bridges; and (3) any other moneys which may become available to the county for such purpose. The majority declares that the legislative history of section 43-2-202 supports the conclusion that the clause “any other moneys which may become available to the county for such purpose” authorizes counties to allocate revenue from the specific ownership tax to the county road and bridge fund. Maj. op. at 201-203.

Again, I would not resort to an analysis of the legislative history to interpret this section, because section 43-2-202 is unambiguous and does not authorize such an allocation of revenue. Reading the clause “any other moneys which may become available to the county for such purpose” in conjunction with the preceding phrase, “all moneys received by the county from the state or federal governments for expenditure on roads and bridges,” it is manifest that the words “such purpose” in the first clause mean “for expenditure on roads and bridges.” As revenue derived from the specific ownership tax is not money designated for expenditures on roads and bridges, section 43-2-202 does not authorize the allocation of such funds to the county road and bridge fund.

Moreover, construing 43-2-202 to preclude the allocation of revenues to the county road and bridge fund that are not specifically designated to road and bridge purposes harmonizes section 43-2-202 with sections 30-25-105 and 30-25-106, consistent with our well-established principles of statutory construction. City of Lakewood, 817 P.2d at 96 (holding that statutes concerning related subject matters should be construed together and harmonized if possible). Under this construction, any revenue that is not specifically allocated by law for other purposes, pursuant to section 30-25-105, must be deposited into the county general fund. The county would be precluded from depositing or transferring such funds into the county road and bridge fund pursuant to sections 43-2-202, 30-25-105, and 30-25-106. This interpretation of the relevant statutes, as opposed to the majority’s interpretation, harmonizes the statutes, giving effect to all provisions as required by our rules of statutory construction. Walgreen Co., 819 P.2d at 1043; City of Lakewood, 817 P.2d at 96; M.S. v. People, 812 P.2d at 637.10

The majority also cites Riverton Produce Co. v. State, 871 P.2d 1213 (Colo.1994), for the proposition that in that case, this court “recognized ... the use of specific ownership taxes to fund road and bridge projects.” Maj. op. at 203. In my opinion, Riverton Produce is inapposite to the instant case. In Riverton Produce, this court considered whether the registration fees and special ownership taxes mandated by sections 42-3-105 and 42-3-106 were constitutional under the Commerce Clause of the United States *207Constitution. We held that the facial disparity in those sections between the tax rates applicable to interstate and certain intrastate vehicles violated the Commerce Clause. Id. at 1228. The use of special ownership taxes was not at issue in Riverton Produce, and we rendered no holding in that case regarding the use of the revenue from those taxes.

IV.

I would hold, based on the foregoing analysis, that the Board’s actions were improper because: (1) section 48-2-202 is unambiguous and its plain language does not authorize Adams County’s allocation of the County’s specific ownership tax revenue to the Adams County Road and Bridge Fund, and (2) sections 30-25-105 and 30-25-106 expressly preclude such allocation. Therefore, I dissent.

I am authorized to say that Justice LOHR and Justice KIRSHBAUM join in this dissent.

. A mill levy is a tax on property. Each mill represents $1 of tax assessment per $1000 of property value assessment. See Black's Law Dictionary 994 (6th Ed.1990).

. Section 43-2-203(2) provides:

The board of county commissioners in each county is authorized to levy such rate of tax on all taxable properly located within the county as required, when added to the estimated bal-anee on hand at the beginning of said ensuing fiscal year and the amount of all revenues, other than property tax revenue, estimated to be received during said fiscal year, to defray all expenditures and payments estimated to be made from the county road and bridge fund during said fiscal year.

.Section 43-2-123 provides:

City street systems. There shall be established in each city, city and county, and incorporated town a system of streets to be known as the ci1y street system. It shall not include any street established by law as a part of the state highway system.

Section 43-2-124(4) provides:

The city streets system, both arterial and local service streets, shall be constructed and maintained by the respective city, city and county, or incorporated town.

. Section 43-2-202(1) provides in pertinent part:

A fund to be known as the county road and bridge fund is created and established in each county of this state. Such fund shall consist of the revenue derived from the tax authorized to be levied under section 43-2-203 for road and bridge construction, maintenance, and administration, all moneys received by the county from the state or federal governments for expenditure on roads and bridges, and any other moneys which may become available to the county for such purpose.

. Section 43-2-202(2) provides in pertinent part:

Each municipality located in any county of this state is entitled to receive from the county road and bridge fund of the county wherein it is located an amount equal to fifty percent of the revenue accruing to said fund from extension only of the levy authorized to be made under section 43-2-203 against the valuation for assessment of all taxable property located within its corporate boundaries.

. Article X, section 6 of the Colorado Constitution provides in pertinent part:

The general assembly shall enact laws classifying motor vehicles ... prescribing methods of determining the taxable value of such property, and requiring payment of a graduated annual specific ownership tax thereon, which tax shall be in lieu of all ad valorem taxes upon such property....
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Such graduated annual specific ownership tax shall be in addition to any state registration or license fees imposed on such property, shall be payable to a designated county officer at the same time as any such registration or license fees are payable, and shall be apportioned, distributed and paid over to the political subdivisions of the state in such manner as may be prescribed by law.

Colo. Const, art. X, § 6.

.Section 30-25-106 provides in pertinent part:

The board of county commissioners is authorized to appropriate money from the county general fund for all ordinary county expenses ... except expenditures for ... roads and bridges....

. See supra note 7 and accompanying text.

. Section 30-25-106 also prohibits the Board from making expenditures from the general fund for public welfare, debt service, public hospitals, public works, contingencies, and purposes voted by the electors.

. The majority cites El Paso County Board of Equalization v. Craddock, 850 P.2d 702, 704-05 (Colo.1993) for the proposition that: “We often consider and give appropriate deference to the contemporaneous and consistent interpretation of a statute made by a governmental entity charged with its interpretation or enforcement." Maj. op. at 12. In El Paso, we also stated that "[cjourts, of course, must interpret the law and are not bound by an agency decision that misapplies or misconstrues the law.” Id. Because the Board has misconstrued the relevant statutes in this case, its interpretations and prior actions are not binding on this court.