Opinion
No. 95SC10
June 10, 1996 Petition for Rehearing DENIED July 29, 1996
Certiorari to the Colorado Court of Appeals
JUDGMENT AFFIRMED
Griffiths Tanoue, P.C., Susan K. Griffiths, Denver, Colorado.
City of Aurora, Colorado, Charles H. Richardson, Julia A. Bannon, Michael J. Hyman, Aurora, Colorado, Attorneys for Petitioners.
Robert J. Loew, Adams County Attorney, Ronald A. Carl, Assistant Adams County Attorney, Brighton, Colorado, Attorneys for Respondents.
Geoffrey T. Wilson, Denver, Colorado, Attorney for Amicus Curiae Colorado Municipal League.
Bruce T. Barker, Weld County Attorney, Greeley, Colorado Attorney for Amicus Curiae Colorado Counties, Inc.
We granted certiorari to review the court of appeals' decision in City of Aurora v. Board of County Comm'rs, 902 P.2d 375 (Colo.App. 1994). The court of appeals held that Adams County can allocate revenue from the specific ownership tax to the Adams County Road and Bridge Fund, irrespective of the allocation's effect on Adams County's duty to share its road and bridge tax revenues with the municipalities in its jurisdiction. Because we find that the General Assembly did not intend to restrict the ability of the Board of County Commissioners to manage the Adams County budget, we affirm the judgment of the court of appeals.
I.
The petitioners, City of Aurora, Colorado; City of Thornton, Colorado; City of Westminster, Colorado; City of Brighton, Colorado; City of Broomfield, Colorado; and City of Federal Heights, Colorado (collectively referred to as the Cities), are all municipalities located partially or totally in Adams County, Colorado. The respondents, the Board of County Commissioners of the County of Adams, Colorado, and its officials (collectively referred to as Adams County), have traditionally allocated some revenue from the specific ownership tax to fund road and bridge construction throughout Adams County. Beginning in 1992, Adams County has allocated a majority of its specific ownership tax revenue to the Adams County Road and Bridge Fund (Road and Bridge Fund).
The Cities initiated this action in the district court seeking review of Adams County's action. The Cities contend that Adams County has effectively eliminated their revenue from the road and bridge tax and the shareback provision by using a majority of the revenue from the specific ownership tax to fund the Road and Bridge Fund. Adams County asserts that the procedure is within its budgeting powers and that it has been allocating under this format since the inception of the specific ownership tax in 1970.
The district court granted partial summary judgment in favor of the Cities, finding that (1) a preliminary injunction was unwarranted, and (2) the specific ownership tax revenue may not lawfully be allocated to the Road and Bridge Fund.
The court of appeals affirmed the denial of the preliminary injunction but on different grounds, and reversed the trial court's judgment. The court of appeals held that the specific ownership tax revenue may be lawfully allocated to the Road and Bridge Fund, and we granted certiorari. We conclude that the specific ownership tax revenue may be lawfully allocated to the Road and Bridge Fund, and affirm the judgment of the court of appeals.
We granted certiorari on the following issue:
Did the court of appeals err in ruling a county may allocate its specific ownership tax revenue to its road and bridge fund?
II.
This case involves the interrelationship of two taxes: (1) the specific ownership tax, a state personal property tax imposed on motor vehicles; and (2) the county road and bridge tax, a county ad valorem property tax. To put this case in perspective, we will describe each tax.
The specific ownership tax is authorized by article X, section 6 of the Colorado Constitution and is implemented by a statutory scheme presently codified at sections 42-3-101 to -144, 17 C.R.S. (1995 Supp.). Specific ownership taxes are collected in part by the county clerk and recorder and in part by the state with respect to interstate vehicles. The state remits a portion of its collections to each county based on the percentage of state roads located in the county. § 42-3-107(6), 17 C.R.S. (1995 Supp.). Each county in turn is required to apportion its share between itself and the political subdivisions located within the county. § 42-3-107(23), 17 C.R.S. (1995 Supp.).
The statute was amended and recodified effective January 1, 1995. No relevant changes were made in the statute and, for convenience, we refer to the current codification.
Both taxes have shareback provisions requiring Adams County to pay over some of the revenue generated by that tax to the Cities. The Cities do not challenge Adams County's compliance with the shareback provision in the specific ownership tax law. Only the road and bridge shareback provision is at issue here. See n. 4 infra.
The road and bridge tax is an ad valorem property tax which the county is authorized to levy under section 43-2-203(2), 17 C.R.S. (1993). As its name suggests, the revenue from the tax is used to build and maintain county highways and bridges. Each municipality located within the county is entitled to a share of the road and bridge tax revenue collected by the county.
The relevant portion of the statute states:
Each municipality located in any county of this state is entitled to receive from the county road and bridge fund of the county wherein it is located an amount equal to fifty percent of the revenue accruing to said fund from extension only of the levy authorized to be made under section 43-2-203 against valuation for assessment of all taxable property located within its separate boundaries . . . .
§ 43-2-202(2), 17 C.R.S. (1993) (emphasis added). The road and bridge tax shareback provision is at issue here.
The controversy in this case centers on the definition of the Road and Bridge Fund established by section 43-2-202(1), 17 C.R.S. (1993), which states:
A fund to be known as the county road and bridge fund is created and established in each county of this state. Such fund shall consist of the revenue derived from the tax authorized to be levied under section 43-2-203 for road and bridge construction, maintenance, and administration, all moneys received by the county from the state or federal governments for expenditure on roads and bridges, and any other moneys which may become available to the county for such purpose . . . .
§ 43-2-202(1), 17 C.R.S. (1993) (emphasis added).
The Cities object to Adams County's practice contending that allocation of specific ownership tax revenue to the Road and Bridge Fund violates section 43-2-202(1), 17 C.R.S. (1993), the statute establishing the fund. The Cities allege that the increased allocation of specific ownership taxes to the Road and Bridge Fund reduced the road and bridge tax and correspondingly decreased the shareback revenues allocated to the Cities under the statute.
III.
In interpreting the Road and Bridge Fund statute, we rely on the well-established rules of statutory interpretation. First, we look at the statutory language itself. Colorado State Bd. of Medical Examiners v. Saddoris, 825 P.2d 39, 42 (Colo. 1992). Where the statutory language is clear and certain, the statute should be construed as written. Id. Where, however, the statutory language is ambiguous or unclear, we may rely on other tools of statutory construction such as legislative history or administrative interpretation in order to discern and effectuate the legislative intent. A.B. Hirschfeld Press, Inc. v. City County of Denver, 806 P.2d 917, 920 (Colo. 1991); Howard Elec. and Mechanical, Inc. v. Department of Revenue, 771 P.2d 475, 478-79 (Colo. 1989).
A.
Section 43-2-202 which governs the Road and Bridge Fund provides that the fund can include revenue from three sources: (1) the road and bridge tax; (2) state and federal programs; and (3) "any other moneys which may become available to the county for such purpose." The statute does not define the terms "any other moneys" or "may become available."
The Cities contend this statute must be read in conjunction with the statute controlling the Adams County General Fund (General Fund). The Cities assert that the specific ownership tax must be deposited into the General Fund and, once deposited, cannot be expended for roads and bridges. Section 30-25-105 creates a General Fund, and provides:
A fund to be known as the county general fund is hereby created and established in each of the counties of the state of Colorado. The county general fund shall consist of all county revenue except that specifically allocated by law for other purposes.
§ 30-25-105, 12A C.R.S. (1986) (emphasis added). The Cities contend that because the specific ownership tax is not "specifically allocated by law" to a certain fund it must be deposited into the General Fund. Moreover, the Cities assert that section 30-25-106, 12A C.R.S. (1986), expressly prohibits allocations from the General Fund to road and bridge construction. Section 30-25-106 provides:
The board of county commissioners is authorized to appropriate money from the county general fund for all ordinary county expenses . . . except expenditures for . . . roads and bridges . . . .
§ 30-25-106(1), 12A C.R.S. (1986) (emphasis added).
There are two cases addressing the issue of "transferring" money between the General Fund and the Road and Bridge Fund. In Greeley v. Board of County Comm'rs, 644 P.2d 76, 77 (Colo.App. 1981) and City of Colorado Springs v. Board of County Comm'rs, 648 P.2d 671, 672 (Colo.App. 1982), the court of appeals held that funds could not be transferred from the General Fund to the Road and Bridge Fund due to the prohibitory language in section 30-25-106, 12A C.R.S. (1986). However, the instant case is distinguishable in that the specific ownership taxes at issue were not deposited in the Adams County General Fund. Rather, upon receipt the revenue was allocated directly to the Adams County Road and Bridge Fund.
In response, Adams County contends that the language "any other moneys which may become available to the county for such purpose" gives the Adams County Board of Commissioners broad discretion to use "any" money to fund road and bridge construction projects through the Road and Bridge Fund unless such usage is prohibited by law. Under its broad interpretation, "any" means all other revenue sources, including the specific ownership tax. See Webster's Third New International Dictionary 97 (3d ed. 1986) (defining "any" as "non-specific and expansive"). In addition, Adams County asserts that the specific ownership tax revenue is "specifically allocated by law" because the Board of Commissioners allocated the revenue to the Road and Bridge Fund in the 1992 Adams County budget. See Black's Law Dictionary 101 (6th ed. 1990) (defining "allocate" as "to prescribe a particular use for particular moneys"). Adams County relies on its broad discretionary budget powers under section 30-11-107(2)(a), 12A C.R.S. (1986), and the presumption of validity which accompanies an exercise of its budgetary powers under section 30-11-107(2)(b), 12A C.R.S. (1986), to assert its position.
B.
Given that the statutory language is not clear with respect to whether the specific ownership tax revenue can be directly allocated to the Road and Bridge Fund, we must turn to other sources to construe section 43-2-202, 17 C.R.S. (1993). We look first to the legislative history and next to the administrative interpretation given to the statute since its enactment.
The legislation in question was enacted before the General Assembly adopted its current practice of tape recording its hearings and floor debates. However, the statutory amendments resulted from a 1969 report by the Highway Revenue Committee to the Colorado General Assembly recommending changes in what is now section 43-2-202. The 1969 statute's list of possible revenue sources for the Road and Bridge Fund included "appropriation by county commissioners" and "all other moneys available for road and bridge purposes" instead of the current phrase "any other moneys which may become available for such purposes." The report recommended deleting the "appropriation" phrase and changing the "other moneys" phrase to the current version. In addition, the report suggested creating the revenue sharing program between the counties and their municipalities.
Before its amendment in 1970, the predecessor to section 43-2-202 provided:
A fund to be known as the "county road and bridge fund" is hereby created and established in each of the counties of the state of Colorado. The county road and bridge fund shall consist of all moneys received from state and federal sources to be expended by a county for road and bridge construction, maintenance and administration; appropriation by the county commissioners; and all other moneys available for road and bridge purposes.
§ 120-1-2, 6 C.R.S. (1963) (emphasis added).
The specific recommendation of the Highway Revenue Committee in its 1969 Report to the Colorado General Assembly regarding the creation of a shareback requirement is as follows:
That the law relating to the county road and bridge levy and the county road and bridge fund be amended to provide that 50% of the revenue raised from the valuation of property located within the boundaries of a city or incorporated town by extension of the county road and bridge levy against such valuation be paid over to said city or town when collected by the county treasurer, with the provision that said city or town, by mutual agreement with the county, may elect to receive the equivalent of such amount in the form of materials furnished, or work performed within its boundaries, by the county, but in those cases where the annual amount of such revenue is estimated to be less than $2,000, the equivalent of such amount shall be receivable by such city or town only in the form of material furnished, or work performed within its boundaries, by the county.
Report to the Colorado General Assembly: Highway Revenue Committee 9 (Dec. 1969).
Although the recommended statutory changes were made in 1970, the report did not discuss limiting the revenue sources for county road and bridge funds. Nor did it mention why the "appropriation" phrase was deleted and the "other moneys" language was changed. While we hesitate to read too much into the report's silence, it seems reasonable to conclude that the changes were seen as technical in nature and that the drafters did not intend to place significant new limitations on a county's budgetary powers. As the court of appeals stated:
When the legislature has intended to limit the revenue sources available to a county for a particular program, it has done so directly. See, e.g., § 26-1-122, 11B C.R.S. (1995 Supp.) (Social Service Fund). The statute dictates that a county can utilize "other moneys" only to make up any budgetary shortfalls after the social services tax. Colorado Dep't of Social Servs. v. Board of County Comm'rs, 697 P.2d 1, 17 (Colo. 1985). The Road and Bridge Fund creates no preference for utilization of the road and bridge tax and its attendant shareback provision over other sources of revenue.
[T]he 1970 amendments do not simply eliminate county appropriations as a method of funding for roads and bridges. The amended language provides for a road and bridge tax levy and broadens the "all other moneys" provision to include all moneys "which may become available."
City of Aurora, 902 P.2d at 379.
Construing together sections 30-25-105 and 43-2-202, we conclude, as did the court of appeals, that Adams County may allocate to the Road and Bridge Fund any funds which are not restricted for some other purpose by constitutional provision or statute.
C.
This interpretation is consistent with the interpretation given to the statute by the counties and the Division of Local Government. The record reflects that Adams County has consistently allocated specific ownership tax revenue to its Road and Bridge Fund; only the percentage so allocated has changed over time. In evidence are records of the Colorado Department of Transportation showing that the great majority of all Colorado counties rely on the specific ownership tax revenues to pay for roads and bridges. The Division of Local Government also has interpreted the statute as permitting use of specific ownership tax revenues for this purpose. Indeed, we recognized in Riverton Produce Co. v. State, 871 P.2d 1213, 1228 (Colo. 1994), the use of specific ownership taxes to fund road and bridge projects.
Located within the Department of Local Affairs, the Division of Local Government gives assistance to local governments and is authorized among other things to conduct research on local government financial issues. § 24-32-104(1)(e), 10A C.R.S. (1988).
We often consider and give appropriate deference to the contemporaneous and consistent interpretation of a statute made by a governmental entity charged with its interpretation or enforcement. El Paso County Bd. of Equalization v. Craddock, 850 P.2d 702, 704-5 (Colo. 1993). When, as here, the administrative interpretation is a reasonable construction of the statute consistent with public policy, we find it persuasive. Id.
Article X, § 18 of the Colorado Constitution ties revenues generated by taxes on the operation of motor vehicles to the construction and maintenance of public highways. Although not directly applicable to the specific ownership tax, a state personal property tax on motor vehicles, this provision indicates that Adams County's allocation of these revenues to its Road and Bridge Fund is consistent with public policy.
D.
Finally, we are not willing to limit Adams County's discretion to manage its financial affairs without clear legislative authority mandating that result. A board of county commissioners is given a wide degree of discretion in determining budgetary matters for the county. § 30-11-107(2)(b), 12A C.R.S. (1986); Beacom v. Board of County Comm'rs, 657 P.2d 440, 446 (Colo. 1983); Tihonovich v. Williams, 196 Colo. 144, 148, 582 P.2d 1051, 1054 (1978). Here, Adams County decided to allocate funds to a specific purpose and, in the absence of a legislative prohibition, its choice should be upheld.
IV.
For these reasons, we affirm the judgment of the court of appeals.
CHIEF JUSTICE VOLLACK dissents, and JUSTICE LOHR and JUSTICE KIRSHBAUM join in the dissent.