COUNTY OF SAN BERNARDINO v. STATE

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Court of Appeal, Second District, Division 3, California.

COUNTY OF SAN BERNARDINO, a political subdivision of the State of California, Plaintiff and Appellant, v. STATE of California, et al., Defendants and Respondents.

No. B037360.

Decided: February 07, 1990

Alan K. Marks, County Counsel, and Paul F. Mordy, Deputy County Counsel, for plaintiff and appellant. John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Sr. Asst. Atty. Gen., Henry G. Ullerich, Supervising Deputy Atty. Gen., and Martin H. Milas, Deputy Atty. Gen., for defendants and respondents. Max E. Robinson, County Counsel, and Pamela A. Stone, Sr. Deputy County Counsel, for amicus curiae, County of Fresno. B.C. Barmann, County Counsel, and Patricia J. Randolph, Deputy County Counsel, for amicus curiae, County of Kern. James P. Jackson, City Atty., William P. Carnazzo, Sr. Deputy City Atty., and Sabrina M. Thompson, Deputy City Atty., for amicus curiae, City of Sacramento.

INTRODUCTION

 Here, we confront the question of whether, consistent with article XIII B, section 6, of the California Constitution, the Legislature may expand the circumstances under which it can decline to reimburse local governments for new or increased state mandated programs.   Finding no express constitutional prohibition against such legislation, we answer in the affirmative.

PROCEDURAL AND FACTUAL BACKGROUND

On November 6, 1979, the California electorate amended the state Constitution with article XIII B to place limitations on government spending.   This voter initiative, commonly known as Proposition 4, served as a corollary to article XIII A, approved by similar initiative process in June 1978, restricting state and local taxation authority.

Section 6 of article XIII B provides as follows:

“Whenever the Legislature or any state agency mandates a new program or higher level of service on any local government, the state shall provide a subvention of funds to reimburse such local government for the costs of such program or increased level of service, except that the Legislature may, but need not, provide such subvention of funds for the following mandates:

“(a) Legislative mandates requested by the local agency affected;

“(b) Legislation defining a new crime or changing an existing definition of a crime;  or

“(c) Legislative mandates enacted prior to January 1, 1975, or executive orders or regulations initially implementing legislation enacted prior to January 1, 1975.”

By its terms, article XIII B, section 6, was essentially self-executing.   (See generally Chesney v. Byram (1940) 15 Cal.2d 460, 463–464, 101 P.2d 1106.)   In 1984, however, the Legislature concluded the then current method of implementation “ha[d] not provided for the effective determination of the state's responsibilities․”  (Gov.Code, § 17500.)   Accordingly, it found and declared “that the failure of the existing process to adequately and consistently resolve the complex legal questions involved in the determination of state-mandated costs ha[d] led to an increasing reliance by local agencies and school districts on the judiciary and, therefore, in order to relieve unnecessary congestion of the judicial system, it [was] necessary to create a mechanism which is capable of rendering sound quasi-judicial decisions and providing an effective means of resolving disputes over the existence of state-mandated local programs.”  (Ibid.)

Based upon these findings, the Legislature established the Commission on State Mandates (“Commission”) and enacted a detailed procedure by which local agencies and school districts are to obtain required reimbursement.  (See Gov.Code, § 17510 et seq.)   As part of this statutory scheme, Government Code section 17514 defines reimbursable “costs mandated by the state” as “any increased costs which a local agency or school district is required to incur after July 1, 1980, as a result of any statute enacted on or after January 1, 1975, or any executive order implementing any statute enacted on or after January 1, 1975, which mandates a new program or higher level of service of an existing program within the meaning of Section 6 of Article XIII B of the California Constitution.”

To determine which legislative enactments fall within this definition, Government Code section 17556 incorporates the exceptions to mandatory reimbursement set forth in article XIII B, section 6, and further provides:  “The commission shall not find costs mandated by the state ․ in any claim submitted by a local agency or school district, if, after a hearing, the commission finds that:

“․

“(d) The local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the mandated program or increased level of service.

“․” 1

These amendments to the Government Code derived from provisions of the Revenue and Taxation Code authorizing reimbursement for the costs of state mandated programs and implementing the reimbursement process.  (See former Rev. & Tax.Code, § 2231 et seq.)   As part of this statutory scheme, former Revenue and Taxation Code section 2253.2 had enumerated several exceptions to the state's obligation to reimburse including an exemption for programs that authorized self-financing.  (See former Rev. & Tax.Code, § 2253.2, subd. (b)(4).) 2

In 1981, the Legislature amended Government Code section 65913.3 mandating “[e]very city, county, or city and county [to] provide for coordination of review and decisionmaking and the provision of information regarding the status of all applications and permits for residential developments, as required by such city, county, or city and county by a single administrative entity.   The city, county, or city and county may charge fees to defray costs which are directly attributable to the coordination of an application of a developer by a single administrative entity.”  (See Stats.1981, ch. 846, § 1.)

In compliance with this directive, the County of San Bernardino (“County”) “develop[ed] and implement[ed] a data base management system to handle the anticipated volume of requests for information relating to residential development and to provide coordination of the various processing step[s] for applications and permits.”   The cost of instituting and maintainingthis system for the fiscal years 1983–1984 and 1984–1985 totaled $332,828.00.

On September 19, 1986, the County filed a “test claim” with the Commission seeking reimbursement of these expenses.  (See Gov.Code, § 17521.)   Following a hearing on February 26, 1987, the Commission initially determined section 65913.3 “constitute[d] a new program within the meaning of Government Code section 17514, but concluded that the County “ha[d] the legal authority to charge sufficient fees for the higher level of service directly attributable to the requirements of [the new measure].”   Under the terms of Government Code section 17556, subdivision (a)(4), this finding precluded any obligation for state reimbursement of the costs of implementation.

The County petitioned for writ of mandate and filed a complaint for declaratory relief seeking reversal of the decision on the basis of an unconstitutional conflict between the provisions of Government Code section 17556, subdivision (d),3 and the more restrictive terms of article XIII B, section 6.

Relying on County of Placer v. Corin (1980) 113 Cal.App.3d 443, 170 Cal.Rptr. 232, the trial court found that article XIII B, section 6, did not restrict the imposition of user fees to cover the reasonable cost of new programs and held that Government Code section 17556, subdivision (d), did not impermissibly absolve the state of its responsibility to reimburse mandated costs.   Consistent with these conclusions, the court denied the writ petition and dismissed the complaint.   The County filed a timely appeal;  and 24 other counties have joined as amici curiae.

ISSUE PRESENTED

Is Government Code section 17556, subdivision (d), constitutional?

DISCUSSION

Well established principles of statutory construction govern our analysis:  “In considering the constitutionality of a legislative act we presume its validity, resolving all doubts in favor of the Act.   Unless conflict with a provision of the state or federal Constitution is clear and unquestionable, we must uphold the Act.  [Citations.]  Thus, wherever possible, we willinterpret a statute as consistent with applicable constitutional provisions, seeking to harmonize Constitution and statute.  [Citations.]”   (California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 594, 131 Cal.Rptr. 361, 551 P.2d 1193.)

 “[S]tatutes must be given a reasonable interpretation, one which will carry out the intent of the legislators and render them valid and operative, rather than defeat them.   In so doing, sections of the Constitution, as well as of the codes, will be harmonized where reasonably possible, in order that all may stand.”  (Rose v. State of California (1942) 19 Cal.2d 713, 723, 123 P.2d 505.)  “All presumptions and intendments are in favor of constitutionality.   The general rule is that the invalidity of a legislative act must be clear before it can be declared unconstitutional.   [Citations.]”  (State Board of Education v. Levit (1959) 52 Cal.2d 441, 452, 343 P.2d 8.)

 The County relies heavily on the mandatory language of article XIII B, section 6, to the effect that “the state shall provide a subvention of funds to reimburse such local government for the costs of such [state mandated] program or increased level of service․”  (Emphasis added.)  (See Cal. Const., art I, § 26 (“The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.”);   State Board of Education v. Levit, supra, 52 Cal.2d at p. 460, 343 P.2d 8.)   However, this argument fails to consider the fact that, unlike the federal Constitution, “[t]he [state] Constitution is deemed to be a reservation of authority rather than a delegation or grant of power, and, consequently, the legislature may be authorized to enact laws which are otherwise valid, when the Constitution fails to prohibit such enactments.  [Citations.]”  (Roth Drug, Inc. v. Johnson (1936) 13 Cal.App.2d 720, 740, 57 P.2d 1022.)   Thus, “ ‘we do not look to the Constitution to determine whether the Legislature is authorized to do an act, but only to see if it is prohibited.’  [Citation.]  If there is any doubt as to the Legislature's power to act in any given case, the doubt should be resolved in favor of the Legislature's action.   Such restrictions and limitations are to be construed strictly, and are not to be extended to include matters not covered by the language used.”  (Collins v. Riley (1944) 24 Cal.2d 912, 916, 152 P.2d 169.)  “Specifically, the express enumeration of legislative powers is not an exclusion of others not named unless accompanied by negative terms.  [Citations.]”  (Dean v. Kuchel (1951) 37 Cal.2d 97, 100, 230 P.2d 811.)  “ ‘[T]he restriction or limitation of [legislative] power must not only be found in the constitution, but the prohibition of its exercise must be clear.   It must appear either from express words or by necessary implication.’ ”  (Id., at p. 101, 230 P.2d 811.)

Accordingly, the dispositive question in this case is not whether article XIII B, section 6, obligates subvention for state mandated programs that do not fall within one of its expressly enumerated exceptions.   Rather, we must determine whether section 6 or any other provision of article XIII B directly or indirectly precludes the Legislature from enlarging upon those exceptions consistent with the purpose of the original initiative.

Neither section 6 nor any other part of article XIII B specifically prohibits further legislative definition of those circumstances obviating reimbursement for state mandated programs.  (See Dean v. Kuchel, supra, 37 Cal.2d at p. 101, 230 P.2d 811;  Roth Drug, Inc. v. Johnson, supra, 13 Cal.App.2d at p. 729, 57 P.2d 1022;  see also Kehrlein v. City of Oakland (1981) 116 Cal.App.3d 332, 338, 172 Cal.Rptr. 111.)   Nor does the article contain any implicit bar to such legislation.   On the contrary, the exception set forth in Government Code section 17556, subdivision (d), is fully consonant with a reading of article XIII B in its entirety,4 particularly section 8, subdivision (c).5

Article XIII B was “[b]illed as a flexible way to provide discipline in government spending” by creating appropriations limits to constrain the amount of such expenditures.  (County of Placer v. Corin, supra, 113 Cal.App.3d at p. 447, 170 Cal.Rptr. 232;  see Cal. Const., art. XIII B, § 1.)  Section 8, subdivision (b), defines the relevant “ ‘appropriations subject to limitation’ ” as “any authorization to expend during a fiscal year the proceeds of taxes levied․”  In turn, “proceeds of taxes” include regulatory licenses, user charges, and user fees only “to the extent that such proceeds exceed the costs reasonably borne by such entity in providing the regulation, product, or service․”  (Cal. Const., art. XIII B, § 8, subd. (c).)  Thus, by definition, user fees charged to recoup the related expenditure, such as those authorized by Government Code section 65913.3, do not affect the equation of local government spending limitations.   (See City Council v. South (1983) 146 Cal.App.3d 320, 334, 194 Cal.Rptr. 110;  County of Placer v. Corin, supra, 113 Cal.App.3d at p. 448, 170 Cal.Rptr. 232;  cf. Russ Bldg. Partnership v. City and County of San Francisco (1987) 199 Cal.App.3d 1496, 1505, 246 Cal.Rptr. 21 (“ ‘fees not exceeding the reasonable cost of providing the service or regulatory activity for which the fee is charged and which are not levied for general revenue purposes, have been considered outside the realm of “special taxes” [limited by California Constitution article XIII A]’ ”);  Terminal Plaza Corp. v. City and County of San Francisco (1986) 177 Cal.App.3d 892, 906, 223 Cal.Rptr. 379 (same).) 6

This conclusion comports, in turn, with the intent of the voters in adopting article XIII B as reflected in the ballot materials accompanying the proposition.7  In general, these materials reflect that “[t]he goals of article XIII B, of which section 6 is a part, were to protect residents from excessive taxation and governmental spending.”  (County of Los Angeles v. State of California, supra, 43 Cal.3d at p. 61, 233 Cal.Rptr. 38, 729 P.2d 202;  Huntington Park Redevelopment Agency v. Martin (1985) 38 Cal.3d 100, 109–110, 211 Cal.Rptr. 133, 695 P.2d 220;  County of Placer v. Corin, supra, 113 Cal.App.3d at p. 452, 170 Cal.Rptr. 232.)   To the extent user fees are not borne by the general public or applied to the general revenues, they do not bear upon this purpose.8

Significantly in this regard, the legislative analyst expressly noted that the limits on government spending “would only apply to appropriations financed from the ‘proceeds of taxes,’ which the initiative defines as:  [¶] ․ Any revenues from a regulatory license fee, user charge or user fee that exceed the amount needed to cover the reasonable cost of providing the regulation, product or service.  [¶] The initiative would not restrict the growth in appropriations financed from other sources of revenue, including ․ user fees based on reasonable costs․”  (Analysis by Legislative Analyst, Ballot Pamp., Proposed Amends. to Cal. Const., Limitation of Government Appropriations, Special Statewide Elec. (Nov. 6, 1979), p. 16.)   Additionally, in discussing the factors that may effect a change in government appropriations, the legislative analyst referred to the fact that if “the source of funds used to support an existing program or service is shifted from the ‘proceeds of taxes' to regulatory license fees, user charges or user fees, the entity's appropriation limit must be decreased accordingly.”  (Id., at p. 20;  see fn. 6, ante.)   The ballot arguments also emphasized the measure “WILL curb excessive user fees imposed by local government” but “will NOT eliminate user fees․”  (Ballot Pamp., Proposed Amends. to Cal. Const., Limitation of Government Appropriations, Special Statewide Elec. (Nov. 6, 1979), arguments in favor of and against Prop. 4, p. 18.)   Thus, in approving the initiative, the electorate was placed on notice and contemplated the continued imposition of reasonable user fees outside the scope of article XIII B.  (See County of Placer v. Corin, supra, 113 Cal.App.3d at p. 452, 170 Cal.Rptr. 232.)

“The concern which prompted the inclusion of section 6 in article XIII B was the perceived attempt by the state to enact legislation or adopt administrative orders creating programs to be administered by local agencies, thereby transferring to those agencies the fiscal responsibility for providing services which the state believed should be extended to the public.”   (County of Los Angeles v. State of California, supra, 43 Cal.3d at p. 56, 233 Cal.Rptr. 38, 729 P.2d 202;  see City of Sacramento v. State of California (1990) 50 Cal.3d 51, 66, 266 Cal.Rptr. 139, 785 P.2d 522.)   “Section 6 had the additional purpose of precluding a shift of financial responsibility for carrying out governmental functions from the state to local agencies which had had their taxing powers restricted by the enactment of article XIII A in the preceding year and were ill equipped to take responsibility for any new programs.”  (County of Los Angeles v. State of California, supra, 43 Cal.3d at p. 61, 233 Cal.Rptr. 38, 729 P.2d 202.)   An exemption from reimbursement for state mandated programs for which local governments are authorized to charge reasonable user fees does not frustrate or compromise these goals nor otherwise disturb the balance of local government financing and expenditure.  (See County of Placer v. Corin, supra, 113 Cal.App.3d at p. 452, fn. 7, 170 Cal.Rptr. 232.)

Also, consideration of the prevailing statutory exemptions at the time of the initiative buttresses the conclusion that Government Code section 17556, subdivision (d), does not conflict with either the express terms of section 6 or the intent of article XIII B as a whole.   Former Revenue and Taxation Code section 2253.2 in part disallowed reimbursement of costs incurred for state mandated programs if “the chaptered bill provided for self-financing authority, unless the mandated cost exceed[ed] the revenue from the additional self-financing authority․”  (Former Rev. & Tax.Code, § 2253.2, subd. (b)(4), amended by Stats.1982, ch. 1256, § 15;  Stats.1982 ch. 734, § 10;  repealed by Stats.1986, ch. 879, §§ 37 to 48.)

 As with the Legislature, the electorate is presumed to be aware of pre-existing law when voting on initiatives.  (See Penziner v. West American Finance Co. (1937) 10 Cal.2d 160, 174–175, 74 P.2d 252;  see also City of Sacramento v. State of California (1984) 156 Cal.App.3d 182, 191, fn. 4, 203 Cal.Rptr. 258, disapproved on other grounds in City of Sacramento v. State of California, supra, 50 Cal.3d at p. 76, 266 Cal.Rptr. 139, 785 P.2d 522, and County of Los Angeles v. State of California, supra, 43 Cal.3d at p. 58, fn. 10, 233 Cal.Rptr. 38, 729 P.2d 202;  County of Fresno v. Malmstrom, supra, 94 Cal.App.3d at p. 979, 156 Cal.Rptr. 777.)   Because the self-financing provisions of former Revenue and Taxation Code section 2253.2, subdivision (b)(4), were not in conflict with article XIII B, approval of the latter did not implicitly repeal the former even though article XIII B, section 6, did not expressly incorporate all the prior statutory exceptions.  “The presumption is against repeals by implication, especially where the prior act has been generally understood and acted upon.   To overcome the presumption the two acts must be irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.   The courts are bound, if possible, to maintain the integrity of both statutes if the two may stand together.   Where a modification will suffice, a repeal will not be presumed.  [Citations.]”  (Penziner v. West American Finance Co., supra, 10 Cal.2d at p. 176, 74 P.2d 252.)   In light of the ballot materials previously cited, we find no such inconsistency arises.

Moreover, “[i]t is not at all unusual to find both a statutory provision and a constitutional provision identical in their operation, and in such event both are considered as the source of the right conferred or penalty imposed.”   (Id., at p. 173, 74 P.2d 252.)   We may also cite the principle that “ ‘[w]here the Legislature has enacted a law in light of a particular constitutional provision, a settled rule of construction is that the Legislature's interpretation of uncertain constitutional terms is entitled to great deference by the courts.’  [Citation.]”  (Huntington Park Redevelopment Agency v. Martin, supra, 38 Cal.3d at p. 108, 211 Cal.Rptr. 133, 695 P.2d 220.)  “We may not assume that the Legislature, by adopting the statute here involved, intended to defeat any of [the constitutional] objectives.” 9  (Dean v. Kuchel, supra, 37 Cal.2d at p. 105, 230 P.2d 811.)

Neither does the choice to constitutionalize three exceptions to reimbursement invoke, as the County argues, the maxim inclusio unius est exclusio alterius.  (See generally City of Sacramento v. State of California, supra, 50 Cal.3d at p. ––––, 266 Cal.Rptr. 139, 785 P.2d 522.)   First, the voters could have expressly prohibited further exceptions even if compatible with the undelying purpose of article XIII B.   Given the failure to do so, any implied limitation on future legislative action must be strictlyconstrued.  (Dean v. Kuchel, supra, 37 Cal.2d at p. 105, 230 P.2d 811;  Collins v. Riley, supra, 24 Cal.2d at p. 918, 152 P.2d 169;  see Penziner v. West American Finance Co., supra, 10 Cal.2d at p. 178, 74 P.2d 252;  see also State Board of Education v. Levit, supra, 52 Cal.2d at p. 462, 343 P.2d 8;  Kehrlein v. City of Oakland, supra, 116 Cal.App.3d at p. 337, 172 Cal.Rptr. 111.)   More importantly, as earlier discussed in a related context, “[t]his argument overlooks the fact that our Constitution is not a grant of power but rather a limitation or restriction upon the powers of the Legislature [citations] and ‘that we do not look to the Constitution to determine whether the Legislature is authorized to do an act, but only to see if it is prohibited.’  [Citation.]”  (Collins v. Riley, supra, 24 Cal.2d at pp. 915–916, 152 P.2d 169.)   Whatever the voters' motivation in raising three exceptions to constitutional proportions, they did not indicate an intent thereby to preclude additional statutory exemptions.10  (See, e.g., County of Contra Costa v. State of California (1986) 177 Cal.App.3d 62, 74, 222 Cal.Rptr. 750;  see also Dean v. Kuchel, supra, 37 Cal.2d at p. 105, 230 P.2d 811.)

Furthermore, the self-executing nature of article XIII B does not alter our conclusion.  “It has been uniformly held that the legislature has the power to enact statutes providing for reasonable regulation and control of rights granted under constitutional provisions.  [Citations.]”  (Chesney v. Byram, supra, 15 Cal.2d at p. 465, 101 P.2d 1106.)  “ ‘ “Legislation may be desirable, by way of providing convenient remedies for the protection of the right secured, or of regulating the claim of the right so that its exact limits may be known and understood;  but all such legislation must be subordinate to the constitutional provision, and in furtherance of its purpose, and must not in any particular attempt to narrow or embarrass it.”  [Citations.]’ ”  (Id., at pp. 463–464, 101 P.2d 1106;  see also County of Contra Costa v. State of California, supra, 177 Cal.App.3d at p. 75, 222 Cal.Rptr. 750.)  Government Code section 17556, subdivision (d), is not a “transparent attempt[ ] to do indirectly that which cannot lawfully be done directly.”  (Carmel Valley Fire Protection Dist. v. State of California (1987) 190 Cal.App.3d 521, 541, 234 Cal.Rptr. 795.)   It creates no conflict with the constitutional directives it subserves and, hence, operates as a valid legislative implementation thereof.

Finally, our determination that the exemption at issue withstands constitutional scrutiny comports with the traditional and historical role of user fees in promoting the multifarious functions of local government.   Such fees are akin to special assessments which are “charged to real property to pay for benefits that property has received from a local improvement․  [Citation.]”  (County of Fresno v. Malmstrom, supra, 94 Cal.App.3d at pp. 983–984, 156 Cal.Rptr. 777;  City Council v. South, supra, 146 Cal.App.3d at p. 335, 194 Cal.Rptr. 110;  see also Russ Bldg. Partnership v. City and County of San Francisco, supra, 199 Cal.App.3d at p. 1504, 246 Cal.Rptr. 21.)   “Special assessments, being levied only for improvements that benefit particular parcels of land, and not to raise general revenues, are simply not the type of exaction that can be used as a mechanism for circumventing these tax relief provisions.  [Citation.]”  (County of Placer v. Corin, supra, 113Cal.App.3d at p. 454, 170 Cal.Rptr. 232.)   Similarly, user fees are paid by those receiving the service for the cost of providing it.11  Since they do not benefit the general public nor add to the general revenues, they were not the target of the spending reforms motivating the adoption of article XIII B.

CONCLUSION

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” 12

 We have focused on the inevitable tension between constitutional mandate and subsequent legislative implementation of the voice of the people constituting a government.

While the power of each is deeply rooted in the law, we guard with vigilance this repository of action by initiative and regard as constitutionally suspect any purposeful effort which would undermine the integrity of its attainment of objective.   Fortunately, there exists no state of war between these powers and common sense.   While delicate in nature, the awesome power of the court to find constitutional violation will not be resorted to except in the most compelling circumstances.

“[Initiative] provisions of the Constitution and of charters and statutes should, as a general rule, be liberally construed in favor of the reserved power.  [Citations.]  As opposed to that principle, however, ‘in examining and ascertaining the intention of the people with respect to the scope and nature of those ․ powers, it is proper and important to consider what the consequences of applying it to a particular act of legislation would be, and if upon such consideration it be found that by so applying it the inevitable effect would be greatly to impair or wholly destroy the efficacy of some other governmental power, the practical application of which is essential and, perhaps, ․ indispensable, to the convenience, comfort, and well-being of the inhabitants of certain legally established districts or subdivisions of the state or of the whole state, then in such case the courts may and should assume that the people intended no such result to flow from the application of those powers and that they do not so apply.’  [Citation.]”  (Hunt v. Mayor & Council of Riverside (1948) 31 Cal.2d 619, 628–629, 191 P.2d 426.)

To invalidate Government Code section 17556, subdivision (d), would significantly interfere with the Legislature's ability to discharge its function of mandating necessary programs for local administration and at the same time maintain fiscal responsibility consistent with articles XIII A and XIII B of the California Constitution.   Since our interpretation of the statute reconciles the tension and upholds its validity in harmony with the language and purpose of article XIII B, we decline to find that the electorate intended otherwise.   The end is legitimate;  the means are appropriate.

DISPOSITION

The judgment is affirmed.   Appellant to bear costs on appeal.

FOOTNOTES

1.   Additional exceptions set forth in Government Code section 17556 include:“․“(b) The statute or executive order affirmed for the state that which had been declared existing law or regulation by action of the courts.“(c) The statute or executive order implemented a federal law or regulation and resulted in costs mandated by the federal government, unless the statute or executive order mandates costs which exceed the mandate in that federal law or regulation.“․“(e) The statute or executive order provides for offsetting savings to local agencies or school districts which result in no net costs to the local agencies or school districts.“(f) The statute or executive order imposed duties which were expressly included in a ballot measure approved by the voters in a statewide election. “․”

2.   At the time of the initiative adopting article XIII B, former Revenue and Taxation Code section 2253.2 provided in part as follows:“․“(b) The Board of Control shall not allow, pursuant to either Section 2250 of this code or to Section 905.2 of the Government Code, any claim submitted by a local agency or school district if, after a hearing, the board finds that:“․“(4) The chaptered bill provided for self-financing authority, unless the mandated costs exceeds the revenue from the additional self-financing authority;“․”At the time the Legislature enacted Government Code section 17500 et seq., Revenue and Taxation Code section 2253.2, subdivision (b)(4), had been amended to read as follows:“The local agency or school district has the authority to levy service charges, fees or assessments sufficient to pay for the mandated program or level of service.”  (See Stats.1980, c. 1256, § 15;  Stats.1982, c. 734, § 10.)

3.   At the time of the underlying action, subdivision (d) was denominated subdivision (a)(4).   The intervening change in form effected no substantive revision.  (See Stats.1986, ch. 879, § 4.)

4.   As with statutory interpretation, “controlling principles of construction ․ ‘require that in the absence of irreconcilable conflict among their various parts, [constitutional provisions] must be harmonized and construed to give effect to all parts.  [Citations.]’  [Citation.]”   (County of Los Angeles v. State of California (1987) 43 Cal.3d 46, 58, 233 Cal.Rptr. 38, 729 P.2d 202; Kehrlein v. City of Oakland, supra, 116 Cal.App.3d at p. 337, 172 Cal.Rptr. 111.)

5.   Article XIII B, section 8, subdivision (c), states:  “ ‘Proceeds of taxes' shall include, but not be restricted to, all tax revenues and the proceeds to an entity of government, from (i) regulatory licenses, user charges, and user fees to the extent that such proceeds exceed the costs reasonably borne by such entity in providing the regulation, product, or service, and (ii) the investment of tax revenues.   With respect to any local government, ‘proceeds of taxes' shall include subventions received from the state, other than pursuant to Section 6 of this Article, and, with respect to the state, proceeds of taxes shall exclude such subventions․”

6.   Article XIII B, section 3, also supports our conclusion that user fees were not intended to affect the balance of government spending but were expected to continue as an adjunct to providing governmental services.   Subdivision (b) of that section provides for the following adjustment in the appropriations limit:  “(b) In the event that the financial responsibility of providing services is transferred, in whole or in part, from an entity of government to a private entity, or the financial source for the provision of services is transferred, in whole or in part, from other revenues of an entity of government, to regulatory licenses, user charges or user fees, then for the year of such transfer the appropriations limit of such entity of government shall be decreased accordingly.”

7.   “Ballot arguments and analyses presented to the electorate may be considered in determining the probable meaning of an initiative's uncertain language.”  (County of Placer v. Corin, supra, 113 Cal.App.3d at p. 452, fn. 6, 170 Cal.Rptr. 232;  Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245–246, 149 Cal.Rptr. 239, 583 P.2d 1281.)

8.   Analogous to this determination, the Court of Appeal in County of Fresno v. Malmstrom (1979) 94 Cal.App.3d 974, 156 Cal.Rptr. 777, concluded that special assessments for the improvement of specified property were not taxes within the meaning of article XIII A, section 4, requiring a two-thirds vote of the electorate.   To so construe special assessments “would place local government entities in a rather precarious situation by forcing them into a Hobson's choice of spending general tax funds either for expenditures to benefit the public at large or for projects to benefit certain individual property owners by funding improvements such as the construction of streets, sidewalks, gutters and sewers.”  (Id., at p. 981, 156 Cal.Rptr. 777.)   Here, the County's argument that article XIII B includes reasonable user fees in the “appropriations subject to limitation” calculation would similarly skew local governments' budgetary decisions.   The solution is not, as the County further argues, to find Government Code section 17566, subdivision (d), unconstitutional so that the state must reimburse the costs of mandated programs and the subventions will be excluded from “proceeds of taxes.”  (Cal. Const., art. XIII B, section 8, subd. (c).)  Rather, the answer is to harmonize the constitutional and statutory provisions by determining that user fees are never considered in the appropriations analysis, which our interpretation of article XIII B as a whole makes possible.  (See also Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d at p. 226, 149 Cal.Rptr. 239, 583 P.2d 1281.)

9.   In this regard, we also advert to the “ ‘familiar and fundamental rule for the interpretation of a legislative statute ․ that it is presumed to have been enacted in the light of such existing judicial decisions as have a direct bearing upon it.’  [Citation.]”  (McFadden v. Jordan (1948) 32 Cal.2d 330, 334, 196 P.2d 787.)   Prior to the enactment of Government Code section 17556, the Court of Appeal in County of Placer v. Corin, supra, 113 Cal.App.3d 443, 170 Cal.Rptr. 232, concluded that “[u]nder article XIII B, ․ the items that make up the scope of ‘ “proceeds of taxes” ’ concern charges levied to raise general revenues for the local entity.  ‘ “Proceeds of taxes,” ’ ․ includes ‘proceeds ․ from ․ regulatory licenses, user charges, and user fees [only ] to the extent that such proceeds exceed the costs reasonably borne by such entity in providing the regulation, product, or service․’  (§ 8, subd. (c)) (Italics added.)   Such ‘excess' regulatory or user fees are but taxes for the raising of general revenue for the entity.  [Citations.]  Moreover, to the extent that an assessment results in revenue above the cost of the improvement or is of general public benefit, it is no longer a special assessment but a tax.  [Citation.]  We conclude ‘proceeds of taxes' generally contemplates only those impositions which raise general tax revenues for the entity.”  (Id., at p. 451, 170 Cal.Rptr. 232.)In light of this interpretation of “proceeds of taxes,” the Legislature could reasonably infer that user fees imposed to cover only the cost of a state mandated program would be excluded from that calculation and, hence, not come within the purview of article XIII B.

10.   In County of Contra Costa v. State of California (1986) 177 Cal.App.3d 62, 222 Cal.Rptr. 750, the Court of Appeal determined the validity of the Commission on State Mandates established by Government Code section 17525 et seq.   The court did not find the failure to include such a commission or other administrative body in article XIII B dispositive of its constitutional analysis and observed, “Perhaps in recognition of [the] repealable and thus impermanent character, the People, by enacting article XIII B, have imposed a constitutional requirement of reimbursement.   Yet nothing in article XIII B renders the statutory administrative procedure for hearing and determining claims void.”   (Id., at p. 74, 222 Cal.Rptr. 750;  see also Blotter v. Farrell (1954) 42 Cal.2d 804, 811, 270 P.2d 481.)   Similarly here, the electorate may have chosen to place the three exceptions to reimbursement specified in article XIII B, section 6, beyond the reach of subsequent legislative amendment or repeal.   That choice, however, does not indicate an intent to preclude subsequent legislative expansion consistent with the intent of the initiative.

11.   At the hearing before the Commission, the County advanced as one reason it declined to impose a user fee to recoup the expense of complying with Government Code section 65913.3 the fact that “developers are extremely resistant to higher fees for development planning activities.   Developers pass these costs on to the purchasers of the new homes within the development.”   This amounts to a discretionary decision on the part of the local government consistent with its perceived economic needs and resources.   By this unilateral choice to absorb the cost of the user fee, the County cannot transform a nonreimbursible cost into a subvention obligation at the expense of the rest of the taxpayers of the state.  (See City of Sacramento v. State of California, supra, 156 Cal.App.3d at pp. 195–197, 203 Cal.Rptr. 258.)

12.   M'Culloch v. Maryland (1819) 17 U.S. (4 Wheat.) 316, 421, 4 L.Ed. 579.

ARABIAN, Associate Justice.

KLEIN, P.J., and CROSKEY, J., concur.