CITY OF RENO (a Municipal Corporation), Petitioner, v. C. H. STODDARD, as Ex Officio City Auditor of the City of Reno, and D. W. DUNKLE, as Ex Officio City Treasurer of the City of Reno, Respondents
City of Reno v. Stoddard
CITY OF RENO (a Municipal Corporation), Petitioner, v. C. H. STODDARD, as Ex Officio City Auditor of the City of Reno, and D. W. DUNKLE, as Ex Officio City Treasurer of the City of Reno, Respondents.
[No. 2293]
CITY OF RENO (a Municipal Corporation), Petitioner, v. C. H. STODDARD, as Ex Officio City Auditor of the City of Reno, and D. W. DUNKLE, as Ex Officio City Treasurer of the City of Reno, Respondents.
[167 Pac. 317]
1. Municipal Corporations — Nature oe Powers — Control by Legislature.
Cities are mere instrumentalities of the state for the convenient administration of government, and their powers may be qualified, enlarged, or withdrawn at the pleasure of the legislature.
2. Municipal Corporations — Funds—Control by Legislature.
The revenues of a city raised by taxation, though levied for specific public purposes, may be applied by the legislature to other municipal uses, subject to constitutional limitations.
3. Municipal Corporations — Repeal—Omission in Amending Act.
Stats. 1915, c. 184, sec. 5, amending charter of city of Reno of March 16,1903 (Stats. 1903, c. 102, as amended by Stats. 1905, c. 71) art. 12, sec. 10, by empowering the city council to levy and collect for general purposes a certain tax on the assessed value of real and personal property, 15 per cent of which should be set aside in a special fund to provide for a sewage-disposal plant or system for the city, was. as to such special fund, repealed by Stats. 1917, e. 76, amending section 5 “to read as follows,” and omitting the provision for such special fund.
4. Municipal Corporations — Special Fund — Repeal oe Statute— Eeeect.
The provision of the last amendatory act that all moneys held in anjr special fund might be transferred to the city’s general fund authorized the transfer of the special sewage-disposal fund created by Stats. 1915, c. 184, sec. 5, to the city’s general fund.
5. Constitutional Law — Motive or Policy oe Legislature — Power oe Court.
The motives of the legislature are not subject to judicial inquiry, and its will is above the judgment of the courts as to the wisdom or policy of legislation.
Original proceeding in mandamus by the City of Reno against C. H. Stoddard, as ex officio City Auditor, and D. W. Dunkle, as ex officio City Treasurer, of the City of Reno.
Writ granted (McCarran, C. J., dissenting).
L. D. Summerfield, City Attorney of Reno, for Petitioner:
In one or two cases where the legislature has authorized the transfer of money raised by taxation from one fund to another, and the courts have held against the transfer, it will be'found upon investigation that there was a constitutional prohibition against such procedure. The fact that the constitutional provision is necessary to prevent the legislature from so acting indicates strongly that in the absence of such a provision such transfers may be made. However, in the case at bar, strictly speaking, the question of the transfer of a special fund raised, by a special tax is not involved. The tax here was levied and collected. for general purposes. After being raised on that basis, the legislature directed a certain portion to be set aside for a certain purpose. Having the power to do this in the first instance, it had the further power to authorize the money so set apart to be transferred to the general fund, to be used for other general purposes.
"A statute must be construed, if possible, so as to give it force and effect.” (Hettel v. First Judicial District Court, 30 Nev. 382, 96 Pac. 1062, 133 Am. St. Rep. 731.) " Courts will construe the language of a statute so as to give force and effect to, rather than to nullify, it.” (State v. Martin, 31 Nev. 493, 103 Pac. 840.) "Particular provisions of charters should be read and construed in the light of the whole instrument, of all preceding charters, of the general legislation of the state, and of the object of the legislature in the creation of municipalities.” (1 Dillon, Mun. Corp., sec. 235.)
An examination of the history of subdivision 3, section 10, article 12, will show that the first portion thereof has always authorized .the levy and collection of a tax "for general purposes.” (Stats. 1905, p. 112; 1911, p. 57; 1913, p. 329; 1915, p. 256; 1917, p. 102.)
A municipality, under delegated authority, may do any. act which the legislature itself can do, subj ect to constitutional limitations. (28 Cyc. 271, 310.)
Whether the transfer authorized be good or bad, on governmental principles, is not a question for the court, but one to be settled between the people and their representatives, whether those representatives be the members of the legislature or the city council of their political subdivision. (Sharpless v. Mayor of Phila., 21 Pa. St. 147, 59 Am. Dec. 759; State ex rel. Police Commissioners v. County Court, 34 Mo. 546.)
James T. Boyd and Roy W. Stoddard, for Respondents:
This is an application, on the petition of the city of Reno, against C. H. Stoddard and D. W. Dunkle, respectively ex officio auditor arid ex officio city treasurer, to compel the transfer to the general fund of moneys raised for a special purpose, namely, to provide for a sewage-disposal plant for the city. (Stats. 1915, p. 256.)
In connection with this act or amendment to the city charter, it is well to bear in mind the provisions of an act to prevent the pollution of the waters of rivers (Stats. 1915, p. 361) in arriving at a determination of the purpose and intention of the amendment of the city charter in 1915, and that the amendment of 1915, above referred to, makes it mandatory for the city of Reno to set aside the amount specified for the special purpose indicated.
The legislature of 1917 (Stats. 1917, p. 102) amended the amendment of 1915, by providing that "all moneys now held in any special fund not herein provided for may be transferred to the general fund of the city”; and it is for this court to determine what was the intention of the legislature in passing the amendment of 1917, and whether the construction to be placed upon the amendment authorizes the transfer of the fund in controversy. "Generally, taxes levied for one purpose cannot be applied to another. ” (28 Cyc. 1730.) " Where a tax expressly authorized by a valid statute for the payment of interest on county bonds has been levied and collected, the fund so created is dedicated to a special purpose or impressed with -a trust. ” ('Coler v. Board, 89 Fed. 257.) "Courts are bound to uphold a prior law, if it and a subsequent one may subsist together, or if it be possible to reconcile the two together, and, unless the latter statute is manifestly inconsistent with and repugnant to the former, both remain in force.” (State v. La Grave, 23 Nev. 373; State v. County Court, 101 Pac. 907; Tilden v. Esmeralda County, 32 Nev. 319; O’Neal v. New York M. Co., 3 Nev. 141; State v. Oldfield, 22 Okl. 863, 98 Pac. 925.)
By the Court,
SANDERS, J.:
The city of Reno petitions this court for a writ of mandamus to compel C. H. Stoddard, as ex officio auditor of said city, and D. W. Dunkle, as ex officio treasurer thereof, to forthwith transfer all moneys held in a special fund to provide a sewage-disposal plant or system for the said city to the general fund of said city. The facts are as follows:
The legislature in 1915 (Stats. 1915, p. 256) amended subdivision .3 of section 10 of article 12 of the charter of the city of Reno. Section 5 of the amendatory act declares:
That section 10 of article 12, with other sections of the act, entitled "An act to incorporate the town of Reno, and to establish a city government therefor," approved March 16, 1903, as amended by Stats. 1905, p. 112, "are hereby amended so as to read as follows:
"Sec. 10. The city council, among other things, shall have power:
"Third — To levy and collect annually for general purposes a tax of not to exceed three-quarters of one per cent upon the assessed value of all real and personal property within the city, and which is by law taxable for state and county purposes, fifteen per cent of which shall be set aside in a special fund to provide for a sewage-disposal plant or system for the city, and for no other purpose, until such time as said sewage-disposal plant or system shall be actually installed and paid for; and in addition thereto to levy and collect annually a tax of not to exceed one-quarter of one per cent, upon the assessed value of all real and personal property within the city, which is by law taxable for state and county purposes, to provide a fund for the payment of the interest on the bonds of the city outstanding, and that may be lawfully issued and sold hereafter, and to provide a fund for the payment of the principal of such bonds, and for the redemption thereof as they shall mature, and for no other purpose."
The legislature in 1917 (Stats. 1917, p. 102) again amended subdivision 3 of section 10 of article 12 of said act by declaring:
That said section "is hereby amended so as to read as follows:
"Sec. 10. The city council, among other things, shall have power:
"Third — To levy and collect annually for general purposes a tax of not to exceed three-quarters of one per cent upon the assessed value of all real and personal property within the city and which is by law taxable for state and county purposes; and in addition thereto to levy and collect annually a tax of not to exceed one-quarter of one per cent upon the assessed value of all real and personal property within the city, which is by law taxable for state and county purposes, to provide a fund for the payment of the interest on the bonds of the city outstanding, and that may be lawfully issued and sold hereafter, and to provide a fund for the payment of the principal of such bonds and for the redemption thereof as they shall mature, and for no other purpose; provided, that all moneys now held in any special fund not herein provided for may be transferred to the general fund of the city."
It is admitted that from March 22, 1915, there has been set aside by respondents, as ex officio officers of said city, from taxes levied and collected for general purposes, in a special fund to provide for a sewage-disposal plant or system for Reno, in pursuance of the amendment of 1915, the sum of $25,895.40, and that this sum still remains in said special fund. It is admitted that no steps have been taken by the city since said date to erect a sewage-disposal plant or system; that there are no creditors, or persons who have any vested interest in or to said moneys so set aside; that from March 22, 1915, to and including March 13, 1917, the date of the last amendment, there were no funds of the city in its treasury, or elsewhere, derived from the levy or collection of a tax or taxes upon assessed value of the real and personal property within said city, and segregated in accordance with the charter of said city, save and except such funds as were so derived and segregated in accordance with subdivision 3, section 10 of article 12, as amended by the legislature in 1915 and 1917. On July 9, 1917, the city council of Reno ordered respondents to transfer all moneys held in said special fund to provide a sewage disposal plant or system for said city to the general fund. The respondents refused, and still refuse, to make the transfer. The petitioner bases its claim for the transfer of said moneys upon the amendatory act of- 1917. The respondents justify their refusal to make the transfer upon the amendatory act of 1915, and are of the opinion that said moneys of right belong to said special fund, and under the limitations imposed by the act of 1915 cannot be transferred.
1, 2. Cities are mere instrumentalities of the state, for the convenient administration of government; and their powers may be qualified, enlarged, or withdrawn at the pleasure of the legislature, and the revenues of a city raised by taxation, though levied for specific public purposes, are so far subject to the legislative will, that by it they may be applied to other uses of the municipality, subject, of course, to constitutional limitations. (Board of Commissioners v. Lucas, 93 U. S. 108, 23 L. Ed. 822; People ex rel. v. Power, 25 Ill. 187; State ex rel. v. Board of Education, 141 Mo. 45, 41 S. W. 924; Cooley's Mun. Corp., sec. 25, p. 76; Dil. Mun. Corp., sec. 1381, 1382, 5th ed.)
Our constitution provides that:
"The legislature shall provide for the organization of cities and towns by general laws; and restrict their powers of taxation, assessment, borrowing money, contracting debts, and loaning their credit, except for procuring supplies of water." (Sec. 8, art. 8, Const. Nevada; Rev. Laws, 345.)
3. It is obvious that the restrictions imposed by the amendatory act of 1915 are retained in the amendatory act of 1917, except the requirement that 15 per cent of the tax levied and collected for general purposes shall be set aside in a special fund to provide for a sewage-disposal plant or system for the city, which is omitted.
It is, no doubt, a well-settled rule in the construction of statutes, that where a statute provides (as in this case) that a certain former statute "is hereby amended so as to read as follows," any provision of such former statute which is not found in the new statute is repealed. There is a negative necessarily implied that such eliminated portion shall no longer be in force. (1 Sutherland, Stat. Const., sec. 246; Black on Int. of Laws, sec. 133, 23 Am. & Eng. Ency. p. 735; State v. Horton, 21 Nev. 306, concurring'opinion; Ratcliff v. People, 22 Colo. 75, 43 Pac. 353; State v. Routh, 61 Minn. 205, 63 N. W. 621; Helena v. Rogan, 27 Mont. 135, 69 Pac. 709; Guaranty Trust Co. v. Troy Steel Co., 68 N. Y. S. 915; Fargo v. Ross, 11 N. D. 369, 92 N. W. 449; Sofers v. Commonwealth, 97 Va. 759, 33 S. E. 384; Nudgett v. Liebes, 14 Wash. 482, 45 Pac. 19; Ashland Water Company v. Ashland County, 87 Wis. 209, 58 N. W. 235.)
4. The omitted provision being repealed or abrogated by its omission from the act of 1917, the question arises, what becomes of the special fund of $25,895.40 already set aside to provide for a sewage-disposal plant or system for the city ? This is answered by the proviso engrafted on the amendatory act of 1917: "Provided, that all moneys now held in any special fund not herein pro vided for may be transferred to the general fund of the city." It is, in effect, admitted by the pleadings th$t the language of the proviso' can relate only to the "special fund" authorized by the act of 1915. The proviso, therefore, is an affirmative declaration to the effect that the city may transfer the fund in question to the general fund, and it is so manifestly inconsistent with and repugnant to the former act, when the city council has acted, that the two amendments cannot stand together.
5. It is unnecessary to extend this opinion, but it is insisted by respondents that by reason of contemporaneous legislation the city is brought under the ban of the general law relative to the pollution of the public streams of this state by the towns and cities thereof, and that if the said special fund be transferred to the general fund the city will be subjected to a suit to restrain it from polluting the waters of the Truckee River (Stats. 1917, p. 51) and will work great harm and threaten the health of the residents and public in general of the city of Reno.
The anti-pollution statutes are not involved in this proceeding, except as an incident to the cause which may have moved the legislature in 1915 to exercise its prerogative and amend the charter of the city so as to provide a sewage-disposal plant or system for the benefit of the inhabitants of the municipality, or prevent the pollution of the waters of the Truckee River. However provident the legislation of 1915 may have been, or however improvident the legislation of 1917 may be in the opinion of respondents, it constitutes no defense to this application for a writ of mandamus. The motives of the legislature are not subject to judicial inquiry. Its will is supreme to that of the judgment of courts as to the wisdom or policy of its legislation.
The writ should be granted.
It is so ordered.