County of Ventura v. Barry

Petition for writ of mandate directing and compelling respondent, as assessor of the county of Ventura, to pay to IT. R. Vandelinder, as treasurer of said county, the sum of $8.85 now retained by said respondent for his own use, as six per cent of the sum of $147.60 collected by him as taxes on unsecured personal property within the said county belonging to Star Petroleum Company, a corporation.

[1] The question is whether or not respondent, as assessor of Ventura County, is entitled to collect fees in accordance with the provisions of section 4290 of the Political Code, that is, retaining six per cent of the total amount collected by him as such assessor as unsecured taxes levied upon personal property taxed within the said county.

Respondent’s contention is that said section 4290 authorizes such retention of fees by him; that said section is the general law applicable to all cases where there is no special provision to the contrary in existence; that section 4252 of the Political Code is the special provision relating to the county of Ventura, and that inasmuch as there is no inhibition in said section 4252 against the retention of said fees, the provision of section 4290 authorizing retention is applicable to him.

After a most careful research among the statutes and decisions, including an independent investigation upon our part, we are constrained to conclude that respondent is correct in his contention, and under the law as it is now written he has the right to retain such percentage. The question presented is purely one of statutory construction.

Section 4290 as it existed on the twenty-second day of June, 1923, and as it now exists, in so far as material to this controversy, was and is as follows: “The salaries and fees provided in this title shall be in full compensation for all services of every kind and description rendered by the officers named in this title either as officers or ex-officio

“Assessor. Provided and except, that the assessor shall be entitled to receive and retain for his own use, unless in this title otherwise provided, six per cent of personal property tax collected by him, as authorized by section three thousand eight hundred twenty, and fifteen per cent of all amounts collected by him for poll taxes, and road poll taxes, and also five dollars per hundred names of persons returned by him as subject to military duty, as provided in section one thousand nine hundred one ...”

On the said twenty-second day of June, 1923, section 4252 of the Political Code, after providing for salaries for the assessor and his deputies was amended and contained the following clause (Stats. 1923, p. 1210): “All commissions or fees now or hereafter allowed by law shall be paid into the county treasury and no compensation shall be allowed the assessor for preparing the military roll of a county of this class. ’ ’ However, by the statutes of 1925 (p. 71), said section 4252 was again re-enacted with the above language omitted.

It is the contention of petitioner that the enactment of 1923 repealed, in so far as the county of Ventura was concerned, said section 4290, relating to retention of percentages on unsecured personal property taxes collected by the assessor, and that the subsequent omission or repeal of the above quoted language by the act of 1925, did not serve to re-enact the repealed provisions of section 4290. In this contention petitioner calls to his aid section 328 of the Political Code, which reads as follows: “No act or part of an act, repealed by another act of the legislature, is revived by the repeal of the repealing act without express words reviving such repealed act or part of an act.” This section of the code is undoubtedly effective in all cases meeting the test therein provided for. It applies to implied repeals as well as express repeals (County of Yolo v. Colgan, 132 Cal. 265 , 276 [ 84 Am. St. Rep. 41 , 64 Pac. 403 ]).

The real question presented, however, is whether or not the 1923 provision of section 4252 did repeal expressly or

In other words, these two code sections have been side by side in the legislation of this state respecting this subject for more than thirty years. The clause substantially as above quoted as a part of the act of 1923 has existed continuously since 1913 (Stats. 1913, pp. 1177-1179 and was continued in the re-enactments of that section in 1915 (Stats. 1915, p. 224); 1917 (Stats. 1917, p. 127), and 1921 (Stats. 1921, p. 678). In other words, from 1893 to 1913, a period of twenty years, the assessor of Ventura County was entitled under the law to collect percentage fees. Prom 1913 to 1923, a period of ten years, he was denied that privilege. In 1925 said clause, as above stated, was omitted from the re-enactment of said section, and we can see no escape from the conclusion that the assessor of Ventura County is again entitled to resume the right to collect this percentage and retain it for his own use.

If each enactment of section 4252 and its forerunner, section 4259, from the year 1913 to the year 1923, was a repeal of section 4290, and each re-enactment of 4290 was in turn a repeal of section 4252, then each of these sections has been at least twice repealed.

We think that petitioner has misconceived the principle of statutory construction applicable to this situation. In the first place, it is plain that these two statutes are in pari materia. It is also plain that there is no inherent antagonism between them, for section 4290 contains the significant language “unless in this title otherwise provided.” In other words, the general section, 4290, is to apply in all

[2] The rule of law applicable to this situation is well stated as follows: “The statutory rule against the revival of a statute by the repeal of a repealing act relates to absolute repeals, and not to cases where a statute is left in force and all that is done in the way of repeal is to except certain cases from its operation. In such cases the statute does not need to be revived, for it remains in force, and the exception being taken away, the statute is afterwards to be applied without the exception; ...” (25 R. C. L. 934.)

The rule has again been stated by the annotater (Ann. Cas. 1918B, p. 284) in a note in the case of Manchester Twp. Supervisors v. Wayne Co. Commrs., 257 Pa. St. 442 [ 101 Atl. 736 ], where the following language is used: “A statute abrogating the common law rule as to the revival of an act by the repeal of the repealing act, has no application where the effect of an act is not to abrogate entirely a former act but merely to withdraw from the operation of the earlier act a portion of the cases included within its terms, leaving the earlier act still in force except as to the cases specifically provided for by the later one. Under such circumstances the repeal of the later act has the effect of again bringing the cases provided for by it within the operation of the original act.”

The principle is again stated in Ex parte Williamson, 116 Wash. 560 [ 200 Pac. 329 , 331], as follows: “It is argued, however, that this conclusion leaves the matter where it was before; that the act operated to suspend the general statutes in so far as it conflicted with them, and that these statutes are not revived by the suspension of the suspensatory act. But the rule is otherwise. The rule against the revival of a statute by the repeal of a repealing statute relates to absolute repeals only, and not to instances where the statute is left in force, and all that is done in the way of repeal is to except certain cases from its operation. In such instances the original statute does not need to be revived, for it remains in force, and, the exception being taken away, the statute is to be applied without the exception.”

The principle is likewise recognized in 23 Cal. Jur., section 100, page 718, as follows: “A general statute, controlled in some of its provisions by a subsequent special statute, is revived by amendment of the latter, intended to give effect to the former. And in cases of conflict between a general and special act, which results in an implied repeal of certain provisions of the former, the subsequent repeal of the latter act may operate to revive the provisions of the general act.”

The above conclusions dispose of the contention that the rule of expressio unius est exclusio alterius should be made applicable to section 4252, which has for its provision the following language: “In counties of the twenty-third class the county officers shall receive as compensation for the services required of them by law or by virtue of their offices the following salaries, fees and expenses, to-wit: . . .”,

As above noted, section 4252 must be read in connection with section 4290, and when they are read together there is no room left for the operation of this rule.

Neither can any weight be given to section 1857 of the Political Code, which provides respecting taxes collected for school purposes that the assessor shall not have fees or compensation for assessing, collecting, or receiving the same. The latest amendment to section 1857 was in 1893 (Stats. 1893, p. 264). The latest amendment and re-enactment of section 4290 was, as we have noted, in 1917 (Stats. 1917, p. 1323). [3] As the latter re-enactment is a subsequent expression- of the law-making power on this same subject, it must be given control over the provisions of the earlier section and no authority need be cited to sustain this rule.

We can take no notice of the contention that the county assessor of Ventura County during this and subsequent fiscal years may, on account of the conditions pertaining in that county, collect a large amount of taxes and thereby

The application for mandate is therefore denied.

Shenk, J., Richards, J., Curtis, J., Seawell, J., and Lang-don, J., concurred.

Rehearing denied.