Oregon Advisory Opinions May 01, 1946: OAG 46-95 (May 1, 1946)
Collection: Oregon Attorney General Opinions
Docket: OAG 46-95
Date: May 1, 1946
Advisory Opinion Text
OAG 46-95.
Ad valorem taxes, under the provisions of chapter 453, Oregon Laws 1945, not levied in dollars and cents are void.
Dear Sir: I have your letter of April 24, 1946, in which you state:
"Your opinion is requested upon proposed action by School District No. 1 of this county looking toward a levy of taxes to provide funds for construction of new school buildings, under the provisions of Chapter 453, Oregon Laws, 1945.
"In brief, the School District plans on submitting to the voters of the District at the election on May 13, 1946, a proposal to authorize a levy of five mills per year for a period of ten years to establish a fund of $210,000.00 to be used in the future for the above mentioned purpose.
"The County Assessor of Union County, is of the opinion that the proposition to be voted upon should state the amount or amounts to be raised by taxation in dollars and cents and that a definite number of mills should neither be voted upon nor levied if authorized. He has requested my opinion (1) whether or not he is legally correct in his contention, and (2) if so, whether he could legally enter a levy presented to him on a millage basis, as above stated, on the tax roll of the county."
Chapter 453, Oregon Laws 1945, is entitled and provides in part as follows:
"An act authorizing counties, municipal corporations, quasi-municipal corporations and civil or political subdivisions that levy ad valorem taxes, to provide funds by taxation or otherwise, either without or within the limitation imposed by article XI, section 11 of the constitution, for financing of public projects, property, and equipment, and of repairs and improvements thereto and of maintenance and replacement thereof; prescribing the method of procuring such funds; * * *
"Section 1. For the purpose of this act counties, municipal corporations, quasi-municipal corporations and civil or political corporations or subdivisions shall be such only as are empowered by law to levy ad valorem taxes, * * *.
"Section 2. That upon approval of a majority of the electors of a subdivision voting at any election regularly called and held therein for the purpose or purposes hereinafter named, the said subdivision may levy taxes serially outside the limitation imposed by article XI, section 11 of the constitution of the state of Oregon, over such period of time as is authorized by the electors but in any event for not more than 10 years. The amounts of the budget items or millages representing said tax levies shall be uniform, or substantially so, throughout the period during which the said taxes are levied.
"Section 5. Any city, town or port by ordinance, and any other subdivision, by resolution, may establish a financial reserve or special fund or funds for the purposes specified in this act, without submitting the question to a vote of the electors, provided the taxes levied or other funds used for the purpose of establishing the said fund or funds are within the limitation imposed by article XI, section 11 of the constitution of the state of Oregon. * * *"
Section 110-705, O. C. L. A., in so far as pertinent, provides:
"All counties, cities, school districts and other corporations, which are vested with the power of levying taxes, shall make their total levy in dollars and cents, and not otherwise, and shall so report the levy to the county assessor and county clerk at the time and in the manner provided in section 110-704. * * *"
Your inquiry requires an analysis of said chapter 453 in order to determine whether or not its provisions operate to amend or modify the above quoted provision of § 110-705, for neither in the title nor in the act itself is there any language expressly indicating that said provision was intended to be either
changed or modified by said chapter 453. Therefore, if any such change or modification is to take place it must be construed to be by implication.
In the case of Clark & Wilson Lumber Co., 137 Or. 186, which was a suit to enjoin the collection of a special road tax of 10 mills levied on all taxable property in road district No. 9, Columbia County, the question was whether it was essential to the validity of the tax that the levy be made in dollars and cents as provided by § 110-705, O. C. L. A. The Supreme Court said, on page 189 of the reported opinion, that
"It is clearly within the province of the legislature to determine the mode or method of levying a tax and, when so provided, such procedure must be strictly observed: Stevens v. Tillamook County, supra (128 Or. 339). A statutory provision relating to a tax levy, the object of which is the protection of the taxpayer and a safeguard against excessive levies, is mandatory. * * *"
It is also stated in Vol. 3, Sutherland, Statutory Construction, "Revenue Legislation", § 6701, pages 293 and 294:
We also read in Vol. 1, Sutherland, Statutory Construction, 3d Ed., § 1913, page 366:"While the power to tax, and the exercise of that power is indispensable to the effective operation of government, the rule has become firmly established that tax laws are to be strictly construed against the state and in favor of the taxpayer. Therefore, where there is reasonable doubt as to the meaning of a revenue statute it should be resolved in favor of those taxed. It was stated in Gould v. Gould (245 U. S. 151, 62 L. Ed. 211), one of the leading cases upon the subject, 'In the interpretation of statutes levying taxes it is the established rule not to extend their provisions by implication, beyond the clear import of the language used, or to enlarge their operation so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government, and in favor of the citizen.'"
See, also, State v. Coats, 158 Or. 102, 110, 111."* * * To be effective, an amendment of a prior act ordinarily must be express. Amendments by implication, like repeals by implication, are not favored and will not be upheld in doubtful cases. The legislature will not be held to have changed a law it did not have under consideration while enacting a later law, unless the terms of the subsequent act are so inconsistent with the provisions of the prior law that they cannot stand together."
In considering whether or not a change or modification by implication takes place, it must first be presumed that the legislature, in enacting chapter 453, was familiar with the provisions of § 110-705, O. C. L. A., with the rules of statutory construction and with the decision of the Supreme Court in declaring that the procedure in said section must be strictly observed and that the requirement that a "total levy in dollars and cents, and not otherwise," is mandatory: State v. Raper, Vol. 38, Advance Sheets No. 17, pp. 783, 784, 149 P. (2d) 165, 166; 50 Am. Jur., Statutes, § 322, p. 319; 59 C. J., Statutes, §625, p. 1061.
This statute (§ 110-705, O. C. L. A.) [Laws 1917, chapter 225, § 1] had been the law of this state for 28 years, and the decision of the Supreme Court in the case of Clark & Wilson Lumber Co. v. Weed, supra (1931), was rendered nearly 14 years before the enactment of chapter 453, Oregon Laws 1945, and was the law of this state at the time of the enactment of said chapter 453.
It is interesting to note that this 1945 act reenacted the identical provision contained in § 97-401, O. C. L. A., repealed by it, namely, that "The amounts of the budget items or millages representing said tax levies shall be uniform, or substantially so, throughout the period during which the said taxes are levied", but that no expression is made in that statute enacted as chapter 140, § 1, Oregon Laws 1939, 22 years after chapter 225, Laws 1917, nor in the 1945 act, indicating any intention to modify or change said § 110-705, O. C. L. A.
In the case of State v. Coats, supra, the court quoted with approval from 59 C. J. at page 857, § 434, pages 110 and 111 of the reported opinion:
"Ordinarily, for an amendment of a pre-existing law to be effective, the amendment must be express. It has been very generally stated that amendments of statutes by implication are not favored and will not be upheld in doubtful cases. Ordinarily, the legislature's enactment of a law will not be held to have changed a statute that it did not have under consideration at the time of enacting such law; and implied amendments cannot arise merely out of supposed legislative intent in no way expressed, however necessary or proper it may seem to be. An amendment by implication can occur only where the terms of a later statute are so repugnant to an earlier statute
that they cannot stand together. If, however, the statutes are so plainly repugnant that they cannot stand together, the old statute is regarded as amended by the new."
The phrase "budget items or millages" as used in chapter 453 is to explain and identify that which goes to make up the required "amounts * * * that shall be uniform, or substantially so". The "amount" is the sum total of two or more sums or quantities, and it is the "total levy" that is to be made in "dollars and cents, and not otherwise," the "total amount of money proposed to be raised by taxation". (§110-705, O. C. L. A.)
It appears that the legislature, with the knowledge of the requirements of § 110-705, O. C. L. A., that all taxes levied must be made in "dollars and cents", and the decision of the Supreme Court holding that said requirements are mandatory and must be strictly followed, in reenacting the provision that "the amounts of budget items or millages representing said tax levy shall be uniform, or substantially so", clearly had in mind the protection of the taxpayers and intended that such "total levy" of the budget items and millages should continue to be made in "dollars and cents".
As stated by Mr. Justice Belt in the Clark & Wilson Lumber Co. case, supra, pages 189 and 190:
" In reference to the statutory requirement that the tax levy must be made in dollars and cents, the legislature might well have had in mind that a taxpayer, in voting upon a proposed levy, would better comprehend the consequences of his act if the amount to be expended for road purposes were thus expressed. If Mr. Citizen is called upon to vote upon a levy of $10,000 for road purposes, there can be no doubt about the matter, but, if a vote is cast for a certain millage, the amount of money to be raised is uncertain in the mind of the voter unless he has definite knowledge of the valuation of the property upon which the levy is made."
It is an elementary rule of construction that all parts of an act relating to the same subject should be construed together and not each by itself, and "the current of authority at the present day is in favor of reading statutes according to the natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending their operation": 25 R. C. L., Statutes, § 217, p. 962.
It is to be noted that chapter 453 provides two methods by which funds may be secured, one by § 1, a levy outside of the statutory limitation by vote of the electors, and the other by § 5, without submitting the question to the vote of the electors, within the limitation.
It is the settled law of this state that all levies for ad valorem taxes within the statutory limitation must be first itemized in a budget and made in dollars and cents, and not otherwise. Of this law the legislature knew, or is presumed to have known, and had it been the intention that the funds authorized by this act could be secured, one by levying in mills and the other in the manner that all levies for ad valorem taxes are required to be made, in dollars and cents, it could easily have said so.
This law has been adhered to in this state for many years, and, as stated in 25 R. C. L., Statutes, § 169, p. 920:
" * * * A rule of law established by judicial decisions and by statute, and rigidly adhered to for many years, should not be held to have been abrogated by a subsequent statute unless the intention of the legislature so to abrogate the same is expressed in clear terms or by necessary implication."
This act contains no expression clearly indicating the legislative intendment to be to change the requirements that all levies for ad valorem taxes shall be made in dollars and cents, and no repugnancy exists to prevent both statutes from standing together.
It is, therefore, my opinion that under the provisions of chapter 453, Oregon Laws 1945, a tax levy made in mills and not in dollars and cents would be void.