APPEAL from a judgment of the Superior Court of the County of Gila. C. C. Faires, Judge. Judgment reversed and case remanded with instructions.
Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Appellant.
Mr. Edward Y. Weeks, Mr. Cullen A. Little and Mr. George F. Senner, for Appellees.
[56 Ariz. 501] LOCKWOOD, C.J.
This is an appeal by Southern Pacific Company, a corporation, hereinafter called plaintiff, from a judgment against it in an action which it had brought against Gila county. The City of Globe, a municipal corporation, and the Town of Miami, a municipal corporation, were brought in as defendants by order of the court. The facts in the case are not in dispute, and may be stated as follows:
Three separate suits were filed by plaintiff against Gila County for the purpose of recovering taxes paid under protest to the county for the benefit of the City of Globe and the Town of Miami, being numbered 7775-B, 7783-B and 7894-B, in the lower court. The first was to recover taxes alleged to have been paid for the years 1934, '35 and '36. The other two were to recover taxes paid for the year 1937. The complaint is based upon the theory that the tax rate levied by the City of Globe and the Town of Miami for each and all of these years exceeded the maximum authorized by law. This claim is based upon the provisions of section 16-213, Arizona Code of 1939, which reads as follows:
"Council may levy certain taxes. The common council shall have power to levy and collect annually, upon the assessed value of the real and personal property within the town, as shown by the equalized assessment roll of the current year, except such as is, or may be, exempt from taxation under the laws of the state, in each year, the following taxes: Not exceeding four (4) mills on the dollar of such assessed valuation to defray the salaries of officers, and the ordinary and contingent expenses of the corporation, not herein otherwise provided for; not exceeding twelve (12) mills on the dollar of such assessed valuation, for the purpose of constructing and repairing streets, sewers, sidewalks and crosswalks, or bridges and culverts, upon such streets and sidewalks; not exceeding four (4) mills on the dollar of such assessed valuation, to defray the interest of the public debt of the town."
[56 Ariz. 502] It is not disputed that the maximum rate fixed by this section was exceeded for each year for which the taxes paid are sought to be recovered by plaintiff, and that if said section was in force at the time of the levy of the taxes, plaintiff is entitled to recover the excess. It is urged, however, by defendants that this section was not in force at the time of the imposition and collection of the taxes aforesaid, for the reason that it previously had been repealed. It is admitted by both parties that the legislature had never expressly repealed it, but defendants claim it had been repealed by implication. It is not disputed by plaintiff that a statute may be repealed by implication, as well as by direct language, in a subsequent act of the legislature, and that such repeals do frequently occur, but it is also urged, as we have said in Rowland v. McBride, 35 Ariz. 511, 281 P. 207, 210:
"It should also be borne in mind that 'repeals by implication are not favored, and will not be indulged, if there is any other reasonable construction.'"
When the question of repeal by implication arises, if the later statute and the former can be construed so that both will be operative, it is the duty of the court to give them such a construction. Biles v. Robey, 43 Ariz. 276, 30 P.2d 841. It is only when upon no reasonable construction both can be operative that it is our duty to hold that the later act repeals the former by implication. Burnside v. School District No. 27, 33 Ariz. 1, 261 P. 629.
Section 16-213, supra, came into our law in the Revised Statutes of 1901 as paragraph 564 thereof, and was continued, with certain variations not going to the issues in this case, in the Revised Statutes of 1913 as paragraph 1850. After 1913, and before the adoption of the Revised Code of 1928, the legislature passed a number of acts which defendants urge most [56 Ariz. 503] strenuously are so inconsistent with paragraph 1850, supra, that it must be assumed it intended to repeal that paragraph. This argument would have considerable force were it not for the fact that the Code of 1928 is not a complied Code, as is that of 1939, but is a revised one, and we have held all sections
of a revised Code are entirely new measures and not a mere carrying forward of some previous legislation, and depend for their validity solely on the action of the legislature at that time and not on previous legislation. Ellery v. State,42 Ariz. 79, 22 P.2d 838; Hoy v. State,53 Ariz. 440, 90 P.2d 623. Since paragraph 1850, supra, was re-enacted in the 1928 Code as section 379 thereof, we must consider it as of equal validity with any other part of the Code, so far as the time at which the various provisions of law now found in that Code first came into our law is concerned. The question before us then is, can the various sections of the Code of 1928 involved be given an interpretation which will reconcile them and make them all practicably workable, for if they can be, the mere fact that such an interpretation may work a hardship upon defendants and other municipalities situated like them cannot affect our decision, the only remedy being an appeal to the legislature. Arizona Eastern R. Co. v. Matthews,20 Ariz. 282, 180 P. 159, 7 A.L.R. 1149. It is only if it appears that these various sections cannot be so interpreted and reconciled so that they are workable, and we must choose between them, that in order to determine which would prevail, we can and should review the history of the various ...