Opinion
No. 71-094 (Supreme Court No. 25058)
Decided October 5, 1971.
Action to determine validity of fee charged to school districts by county treasurer on all school district taxes received and distributed by his office. From determination that treasurer did not have right or duty to charge such fee, treasurer appealed.
Affirmed
1. COUNTIES — Treasurer — Collection Fees — Charged — General Fees Law — No Different — Prohibited — School Foundation Act. Inasmuch as fees charged by county treasurer under the General Fees law fall within the definition of fees charged for the collection of taxes and are therefore collection fees, the contention is without merit that such fees are different from the "collection fees" prohibited by the Public School Foundation Act.
2. STATUTES — Interpretation — Every Word — Given Effect — No Presumption — — Language Used — No Meaning. One of the cardinal rules of statutory interpretation is that every word of a statute must be given an effect if it can be done, and court cannot presume that the legislature used language with intent that no meaning should be given to its inclusion.
3. SCHOOLS AND SCHOOL DISTRICTS — Provisions — School Foundation Act — Conflict — General Fees Law — Repeal — Earlier Act — Implication. Since it must be concluded that the Public School Foundation Act is directed at prohibiting the county treasurer from charging certain fees which would otherwise be authorized by the General Fees Law, that portion of the Foundation Act which conflicts with provisions of the earlier General Fees Law automatically repeals those provisions by implication.
Appeal from the District Court of Arapahoe County, Honorable Donald P. Smith, Jr., Judge.
Simon, Eason, Joyt Malone, Richard L. Eason, for plaintiffs-appellees, Arapahoe County School Districts No. 1, 2 and 6.
Banta, Banta Eitel, for plaintiff-appellee, Arapahoe County School District No. 5.
John D. Saviers, for plaintiff-appellee, Adams-Arapahoe County School District No. 28J.
Ronald S. Loser, for defendant-appellant.
This case was transferred from the Supreme Court pursuant to statute.
This appeal is brought by the County Treasurer of Arapahoe County, Colorado, from an adverse judgment in an action brought by five School Districts located wholly or partly within Arapahoe County. We shall refer to the parties as Treasurer and Districts. The sole issue is whether the Treasurer has the right and duty to charge and receive a fee of one percent on taxes paid into his office pursuant to levies made by the Districts under the terms of the Public School Foundation Act of 1969 (1969 Perm. Supp., C.R.S. 1963, 123-38-1, et seq.) hereinafter called the Foundation Act. The trial court determined that the Treasurer does not have the right or duty to charge and retain such fee. We affirm.
The facts are stipulated. Pursuant to the Foundation Act, the Districts levied taxes which were duly assessed and paid to the Treasurer. In distributing the funds to the Districts the Treasurer charged and retained a fee of one percent of moneys received. In so doing he relied on the provisions of C.R.S. 1963, 56-4-2, which provides in pertinent part:
"56-4-2. Fees of county treasurer. — (1) (a) The county treasurer shall charge and receive the following fees:
(b) Upon all moneys received by him for town and city taxes . . . and upon all school taxes in counties of the first class, one percent; . . .
(c) Upon all moneys received by him for taxes of every other kind in counties of the first class, one percent; . . .
(d) For receiving all monies other than taxes in counties of every class, one percent, . . ."
The Districts however contend that the fee cannot be charged against the taxes paid under the Foundation Act because of the provisions of section 15(2) of the Foundation Act, which provides:
"123-38-15. General Provisions . . . (2) No county treasurer shall charge a collection fee upon any moneys collected or distributed by him to any eligible school district located therein pursuant to the provisions of this article."
The trial court concluded that the above section of Foundation Act repealed by implication the quoted sections of the statute relied on by the Treasurer, insofar as moneys received and distributed pursuant to levies under the Foundation Act are concerned.
The Treasurer asserts that there is no repeal by implication because the Foundation Act prohibits the charging of a "collection fee" upon moneys collected or distributed, whereas the fees set forth in C.R.S. 1963, 56-4-2 (General Fees) are simply "fees" and not "collection fees." The Districts argue for affirmance, not only on the ground of repeal by implication, but also on the ground that the Foundation Act creates an exemption from the fee requirements of the General Fees law. It is our opinion that upon either theory the provisions of section 15(2) of the Foundation Act, supra, control and prevail over the provisions of C.R.S. 1963, 56-4-2.
[1] The contention that the fee prohibited by the Foundation Act is a different fee than the fees provided for in the General Fees law is without merit. Our Supreme Court has held that, "The word "collect" is used to define the power of the county treasurers to gather in or receive money for taxes theretofore assessed . . . ." Parsons v. People, 32 Colo. 221, 76 P. 666. Since the fees provided for in C.R.S. 1963, 56-4-2, are charged upon "all moneys received" by the Treasurer, they fall within the above definition and are fees charged for the collection of taxes and are therefore collection fees.
[2] Furthermore, one of the cardinal rules of statutory interpretation is that every word must be given an effect if it can be done, and we cannot presume that the legislature used the language with intent that no meaning should be given to its inclusion. McMillin v. Colorado, 158 Colo. 183, 405 P.2d 672. This rule becomes significant when we consider the rule set forth in Hillman v. Chmelka, 118 Colo. 252, 195 P.2d 945, wherein the Court said,
"It is well settled that the compensation of any public official for services rendered in his official capacity being regulated by statute, he is entitled only to demand and receive fees for those services concerning which compensation by law attaches, because it is an inflexible rule that an official can demand only such fees or compensation as the law has definitely fixed and authorized for the performance of his official duties."
Therefore, if the fee prohibited by the Foundation Act be considered as a different fee than those provided for in the General Fees law, then there would be no need for the Act to state that such a fee should not be charged, since nowhere else in the statutes is any authority given to the Treasurer to collect such a fee. The effect of the interpretation urged by the Treasurer would be to say that the Foundation Act prohibits the charging of a fee which a county treasurer would not in any event be authorized to charge and thus the whole of section 15(2) of the Act would be rendered meaningless.
[3] Thus, it must be concluded that the prohibition is directed against fees which would otherwise be authorized by statute, namely the fee as set forth in the General Fees law. Section 15(2) of The Foundation Act is in conflict with C.R.S. 1963, 56-4-2, and therefore repeals it by implication. "A later law automatically repeals an earlier law which conflicts with it." Colorado v. Beckman, 149 Colo. 54, 368 P.2d 793, citing Sugar City v. Board of Commissioners, 57 Colo. 432, 140 P. 809.
The theory that the Foundation Act creates an exception to, or amends, the General Fees law is also supported by precedent. The case of Board of County Commissioners v. Otero Irrigation District, 56 Colo. 515, 139 P. 546, involved almost the identical issue involved here. That case determined the effect of a statute pertaining to taxes levied by irrigation districts which provided that the county treasurer who was charged with the duty of collecting such taxes should not receive any commission for such collection. The General Fees law then in effect provided for the charging of "fees and commissions" instead of "fees" as in the present statute. The court held that the irrigation district law "changed" or amended the General Fees law and that the county treasurer could not charge the districts any fee or commissions. In like manner section 15(2) of the Foundation Act amends the General Fees law by exempting the taxes collected under the Foundation Act from the provisions of C.R.S. 1963 56-4-2.
The judgment is affirmed.
JUDGE COYTE and JUDGE DWYER concur.