I do not agree with that portion of the majority opinion which is devoted to plaintiff's appeal. Upon its face, the opinion sounds logical and is very persuasive, but a consideration and an analysis of the true situation and of the status of the law that bears upon it lead me to a different conclusion.
Prior to the passage of what is termed the "forty-mill tax limit" act, which is initiative measure No. 64 (chapter 4, Laws of 1933, p. 47, Rem. 1933 Sup., § 11238-1), the legislature in the extraordinary session of 1925 had passed an act relating to assessment, levy and collection of taxes. Chapter 130, Laws of 1925, Ex. Ses., p. 277. Section 77 of that act, so far as it is material here, provides: *Page 282
"For the purpose of raising revenue for state, county and other taxing district purposes, the board of county commissioners of each county at its October session, and all other officials or boards authorized by law to levy taxes for taxing district purposes, shall levy taxes on all the taxable property in the county or district, as the case may be, sufficient for such purposes; provided, that unless and until otherwise provided by law, . . . the tax for the payment of county indebtedness shall not exceed five mills on the dollar of assessed valuation of the property of the county . . ." (Italics mine.) Rem. Rev. Stat., § 11238.
Other specific items of taxation were similarly limited to specific millage rates. By the proviso in the foregoing section, therefore, the constituent items of the total levy were specifically limited. That provision of the 1925 act was re-enacted in chapter 303, Laws of 1927.
When the people adopted initiative measure No. 64, they knew, or must be considered as then knowing, of the existence of the prior statute and its limitations. In other words, they knew that the limitation upon the specific item for county indebtedness was five mills. They must, therefore, have legislated with respect to the law as it then stood, with the view of either repealing it or else of adopting it. I waive the argument that the people, impelled by necessity on the one hand and staggering taxation on the other, resolved primarily to restrict the burden of taxation to an outside limit of forty mills upon assessed valuations, and I will therefore consider the question, as have the majority, wholly as a legal and technical problem.
It is conceded, I think, that initiative measure No. 64 did not expressly repeal the 1925 act. I will, likewise, concede that it did not expressly adopt it. This, then, leaves only the question whether the initiative measure impliedly repealed orimpliedly adopted the *Page 283 former act. It must further be conceded by all, I think, that, unless the former act was, or is, impliedly repealed, it still stands, and the two acts must therefore be read in parimateria. When so read, the purpose and intent of the people as expressed in the initiative measure become plain. In effect, they said this: The limit for the specific item of "tax for the payment of county indebtedness" being five mills, we, the people, enact this measure by which the aggregate of all taxes levied upon real and personal property shall not exceed forty mills on the dollar of assessed valuation, upon the condition, however, that if the levy of five mills "for county indebtedness," already permitted, shall have the effect of increasing the aggregate levy for all purposes beyond the total of forty mills per dollar of assessed valuation, then, and only then, shall such excess be legal.
In the present case, the item levied for county indebtedness not only exhausts the five-mill limit, but extends it to 9.53 mills. The people certainly did not expect that their officials would, nor did they intend that they should, exceed the legal limit already prescribed for specific items of taxation, and by a circuitous procedure, year by year, accomplish that which they could not otherwise do. The county may now evade the intent of the "forty mill tax limit" act by the simple device of levying additional taxes to pay "toward the reduction" of its present outstanding warrant indebtedness, while it permits its future indebtedness of the same kind to accumulate.
It is elemental that, if two acts, when read together, are not inconsistent, then there is no implied repeal of the one by the other, and further, that two acts upon the same subject should be so construed as to make them both effective, if possible. *Page 284
"Repeals by implication are not favored, and will not be indulged if there is any other reasonable construction. The presumption is always against the intention to repeal where express terms are not used, and the implication, in order to be operative, must be necessary. A law is not repealed by a later enactment, if the provisions of the two laws are not irreconcilable nor necessarily inconsistent, but both may stand and be operative without repugnance to each other. Nor can one act be allowed to defeat another if, by a fair and reasonable construction, the two can be made to stand together. Although two acts are seemingly contradictory or repugnant, they are, if possible by a fair and reasonable interpretation, to be given such a construction that both may have effect. If a later act not repugnant to the earlier and containing no negative words is not clearly intended to cover the whole ground of the earlier, there is no implied repeal." 25 R.C.L., p. 918, § 169.
Under the construction that I place upon the two acts, they are entirely consistent and harmonious: the "tax for the payment of county indebtedness" is thereby limited to five mills, and if the five-mill tax for that item extends the aggregate of all taxes levied beyond the forty mill limit, the excess is still permissible and legal. But the act should not be so construed as to permit the levy "for county indebtedness" to exceed the five-mill limit; otherwise, the "forty mill tax limit" act becomes wholly impotent.
I have read with considerable interest the two very able and exhaustive opinions written by the superior court judges who satEn Banc in the trial of the case below, and I believe that they were correct in their first opinion, which held that the levy for county indebtedness beyond the five-mill limit was illegal and void.
For the reasons herein expressed, I am compelled to dissent from the majority opinion.
TOLMAN, J., concurs with STEINERT, J. *Page 285