Lambe v. McCormick

McClain, J. — Considerable portions of the. arguments ■on each side relate to the constitutionality of Code, section 1374, authorizing county treasurers, within five years of the date on which assessments should have been made, to bring action for taxes on property subject to taxation which has been withheld, overlooked, or from any other cause not listed and assessed; and to the question whether that ■section should be applied to eases where property was so withheld or overlooked and not assessed prior to the tailing effect of the present Code (1897), in which the provisions of this section were first enacted. These questions have been fully considered in the case of Gulusha v. Wendt, 114 Iowa, 597, decided by this court at the same term at which the cases now before us were submitted. It is unnecessary to review these questions. The conclusions of the court in that case were adverse to the position taken by appellees. 1 These cases involve, however, other questions than those discussed in Gulusha v. Wendt, supra. In that case the action was brought prior to the taking effect of chapter 50, Acts Twenty-eighth General Assembly, while in these cases the proceedings are based upon the first section of that statute, which reads as follows: “The board of supervisors of any county may contract in writing with any person to assist the proper officers in the discovery of property not listed and assessed as required by law. Before listing the property discovered, the treasurer shall give the person in whose name it is proposed to assess the same, or his agent, ten days’ notice thereof by registered letter addressed to him at his usual place of residence, fixing the time and place where objection to such proposed listing and assessment may be made. An appeal may be taken to the district court from final action of the treasurer by serving written notice upon him and otherwise proceeding as provided in section 1373 of the Code.” The other sections of the statute relate to contracts with persons to assist the proper officers in the discovery of property [172] not listed and assessed as provided by law, and they are of no significance here. The principal contention of appellees is that the assessments by the treasurer sought to be established in these cases were made under the provisions of Code, section 1374, and that, as this section is unconstitutional (as claimed), and at any rate, not applicable in case of properly previously omitted, the whole proceeding must, fail. But, as we have held that the section is constitutional and applicable to property omitted from assesment before its enactment, this position is, of course, not tenable. But appellees further argue that section 1374 was repealed by implication by the enactment of Twenty-eighth General Assembly, chapter 50, and this is the principal question which we now have to decide. There is no express repeal, and, if any repeal has resulted from the enactment of the later statute, it must be either because its provisions are inconsistent with those of the Code section, or because the intention of the legislature in the enactment of the later statute was to revise the entire subject matter, and supersede the section in question. It is not necessary to cite a multitude of authorities to the effect that repeals by implication are not favored, and that, if the section of the Code and the later statute can be construed together, they will be so construed, and each will be given its proper effect. The rules of interpretation adopted in such cases are sufficiently stated and illustrated in U. S. v. Freeman, 3 How. 556, 564 (11 L. Ed. 724); State v. Gerhardt, 145 Ind. 439 (44 N. E. Rep. 469, 33 L. R. A. 313 ) ; Mersereau v. Mersereau Co., 51 N. J. Eq. 382 (26 Atl. Rep. 682) ; Barden v. Wells, 14 Mont. 462 (36 Pac. Rep. 1076) ; City of Council Bluffs v. Waterman, 86 Iowa, 688; Sherman v. City of Des Moines, 100 Iowa, 88 ; City of Dubuque v. Harrison, 34 Iowa, 163. It is hardly necessary to say that there is nothing in the language of the later act at all inconsistent with the section of the Code. If the legislature had in mind at the time of passing the later act that the section [173] of the Code was r„ valid and subsisting provision, then it is plain that the intention was to amplify that section, and give to the taxpayer notice beforehand of the action of the treasurer in making an assessment of omitted property, and the right to have such assessment reviewed by appeal, in the same way that the action of the board of equalization in fixing the proper amount of an original assessment may be reviewed, thus removing possible objections to or injustice in the procedure authorized by the Code section. The more cogent argument of appellees is, however, that the legislature intended to ignore Code, section 1374, entirely, and supersede it by other provisions for reaching omitted property. In the first place, however, we cannot accede to the ■suggestion that the legislature assumed Code, section 1374, to be wholly unconstitutional and invalid. Having already determined in the previous case that this section is valid, we are not justified in assuming that the legislature made an assumption with reference to that section which we have held to be unfounded. The argument, stated as favorably as possible to the appellees, is this: That, inasmuch as Code, section 1385, provides for the correction of errors by the county auditor with reference to the assessment of any property, and Code, section 1398, provides for the assessment of omitted real property by the county treasurer, the Twenty-eighth General Assembly, by enacting chapter 47, which amplifies Code, section 1385, and chapter 50, which may be construed as relating to Code, section 1398, intended to complete and perfect a system for reaching omitted property, such as would render Code, section 1374, unnecessary, and was therefore intended to supersede it. But section 1374 contains a provision for bringing action to recover taxes on •omitted property which would not be available under the •other sections as thus amplified (Plymouth County v. Moore, 114 Iowa, 700,) and there is no evidence of any intention to abandon that remedy. See U. S. v. Sixty-seven Packages Dry Goods, 17 How. 93 (15 L. Ed. 54). The situation is [174] not the same as it would have been if Code, section 1374,. had stood alone, and the legislature had then subsequently enacted Code, sections 1385, 1398, with these additional provisions incorporated therein. The three sections of the Code-must be regarded as contemporaneous. As a matter of fact, sections 1385 an 1398 had been in effect in substantially the same form prior to- the adoption of the present. Code, while section 1374 is a new provision, first incorporated therein. If the history of this legislation is to be borne-in mind, then section 1374 was the more recent of these provisions. If the legislature intended to repeal section 1374,, therefore, and substitute another remedy, it would unquestionably have expressly indicated that intention. Moreover, Twenty-eighth General Assembly, chapter 50, is not in itself a complete provision for the assessment by the-treasurer of omitted property. By itself it means nothing.. It can only be given a meaning by reference to existing statutory provisions, and there is certainly no inherent evidence-that it was intended to be supplemental to Code, section 1398,, rather than to Code, section 1374. It is, so far as we now see, equally applicable to either, and we would not be justified in holding that it does not recognize the continuing force-of section 1374. If two statutes are not in terms repugnant or inconsistent, it is only where the later one indicates an intention that it shall be a complete substitute for the earlier one that a repeal will be implied. State v. Courtrvey, 73 Iowa, 619 ; Mack v. Jastro, 126 Cal. 130 (58 Pac. Rep. 372); Mersereau v. Mersereau Co., 51 N. J. Eq. 382 (26 Atl. Rep. 682). We hold, therefore, that section 1374 is still in force, and that Twenty-eighth General Assembly, chapter 50, has. reference thereto. [174] Counsel for appellees, in attempting to sustain the ruling of the lower court, argue that the allegation in the pleading by plaintiffs, which was held insufficient on demurrer, does not sufficiently charge the making of an assessment by the treasurer, and that the demurrer was properly sustained on that ground; but the pleading175 does allege in a general way that the treasurer, acting under the provisions of Twenty-eighth General Assembly, chapter 50, assessed the defendants, respectively, in a certain sum specified on account of omitted property. Even if this is objectionable as a conclusion, the pleading would not be open to attach by demurrer. The remedy available would be by motion for more specific statement. Noyes v. Mason City, 53 Iowa, 418; Robinson & Co. v. Berkey, 100 Iowa, 136; Webb v. Bidwell, 15 Minn. 479 (Gil. 394) ; Ottawa Gaslight & Coke Co. v. People, 138 Ill. 336 (27 N. E. Rep. 924). The pleading in behalf of plaintiffs alleges that the defendants, respectively, were, during certain years, the owners of moneys and credits of a certain value stated, and that it was their duty, during each of said years, to report said credits to the assessor for taxation, and to assist in the listing thereof, and that during each and all of said years they failed and refused to list their said credits for taxation, and failed and refused to mahe full and fair disclosures thereof to the assessor, or to report the same for taxation, and the same were not taxed to the defendants who reported as to their credits, and were taxed and assesed for credits during said years in certain amounts specified, which were much smaller amounts than those which they should have returned. These allegations are sufficient to obviate the effect of the prior assessments, and, if tine, the'prior assessments were not binding upon the county so as to preclude re-assessments for omitted moneys and credits. Reynolds v. Bowen, 138 Ind. 434 (36 N. E. Rep. 756, 37 N. E. Rep. 962) ; Saint v. Welsh, 141 Ind. 382 (40 N. E. Rep. 903); Gallup v. Schmidt, 154 Ind. 196 (56 N. E. Rep. 443) ; Id. (Ind. Sup.) 54 N. E. Rep. 384; Sturges v. Carter, 114 U. S. 511 (5 Sup. Ct. Rep. 7014, 29 L. Ed. 240). It appears, therefore, that the lower court erred in sustaining the demurrer to the pleading of plaintiffs which alleged failure of defendants to return and have listed for assessment the entire, amount of moneys and credits subject to taxation, and the ruling and judgment appealed from are REVERSED.