CITY AND COUNTY OF SAN FRANCISCO v. COUNTY OF SAN MATEO (1993)

Plaintiff City and County of San Francisco (appellant) appeals from a judgment denying its claim to a partial refund of property taxes paid to defendants County of San Mateo and County of Alameda (hereafter, respondents).¹

I. FACTUAL AND PROCEDURAL BACKGROUND

Since February 1967 appellant has been the owner of land located in Alameda and San Mateo Counties.   In 1968 the California voters adopted California Constitution, article XIII, section 11,² which imposes a tax on land owned by a local government outside its territory.  Section 11 contains a comprehensive scheme covering the assessment of all government property situated outside that government's political boundary.   It provides that (a) land and water rights in Inyo and Mono counties shall be assessed at their 1966 or 1967 assessed value times the “Phillips” factor; ³ (b) land and water rights in all other counties shall be assessed at the lower of (i) its fair market value times the prevailing percentage of fair market value at which other lands are assessed, and (ii) the formula applied to Mono County;  (c) newly acquired land shall be assessed at its 1967 or 1968 assessed value multiplied by the “Phillips” factor (§ 11, subds. (a) and (b)).   Newly constructed improvements replacing existing improvements shall not exceed the highest value at which the improvements replaced were assessed times current assessment ratio (§ 11, subd. (d)).⁴

“The object of this provision is to protect the smaller counties from substantial loss of tax revenues which might otherwise result.”  (9 Witkin, Summary of Cal.Law (9th ed. 1989) Taxation, § 140, at p. 175, citing San Francisco v. San Mateo (1941) 17 Cal.2d 814, 818, 112 P.2d 595, Pasadena v. Los Angeles (1920) 182 Cal. 171, 174, 187 P. 418, San Francisco v. San Mateo (1950) 36 Cal.2d 196, 199, 222 P.2d 860.)

Article XIII also governs taxes on immature timber (§ 3, subd. (j)), open spaces or agricultural land (§ 8), nonprofit golf courses (§ 10), unsecured property (§ 12), and public utilities (§ 19).

In 1978 the California voters adopted article XIII A, commonly known as Proposition 13.   Proposition 13 enacted substantially different taxation standards than Section 11.   It limited the real property tax to 1 percent of the 1975–1976 assessed value of the property plus an inflationary increase of 2 percent per year;  or its fair market value when the property was acquired, newly constructed or changed in ownership after 1975.  (Art. XIII A, §§ 1, 2.) ⁵  In addition to the differing standards relative to taxation, the two enactments had different objectives as well.  “Proposition 13 was widely publicized as a taxpayers' revolt providing tax relief for homeowners” (Board of Supervisors v. Lonergan (1980) 27 Cal.3d 855, 864, 167 Cal.Rptr. 820, 616 P.2d 802, fn. omitted [hereafter, Lonergan ] ) and “was widely accepted as such by the voters” (ITT World Communications, Inc. v. City and County of San Francisco (1985) 37 Cal.3d 859, 865, 210 Cal.Rptr. 226, 693 P.2d 811 [hereafter, ITT] ).   The purpose of Section 11 was (and still is) to provide adequate, but equitable tax revenues to host counties.

Because the property tax imposed upon appellant pursuant to Section 11 was substantially higher than the tax would have been under Proposition 13,⁶ appellant, while paying all taxes due unsuccessfully petitioned the administrative authorities to be taxed pursuant to Proposition 13.   After having exhausted its administrative remedies, appellant filed actions in the respective superior courts seeking refunds and declaratory relief.   Following consolidation of the actions, the trial court ruled in favor of respondents by holding that the more general provisions of Proposition 13 did not apply to the property at issue because it was controlled by the special restrictions of Section 11.

II. DISCUSSION

A. The Parties' Contentions

Appellant contends that the trial court's ruling, which holds Proposition 13 inapplicable to Section 11 property, should be reversed for the following reasons:  Proposition 13 applies to real property;  government land regulated by Section 11 is real property;  Proposition 13 and Section 11 should be harmonized;  they are not in conflict because Section 11 sets only a limit or cap on the maximum tax and, therefore, does not forbid imposition of the lower tax called for by Proposition 13;  and Revenue and Taxation Code section 52, subdivision (c), is unconstitutional.  (Los Angeles Country Club v. Pope (1985) 175 Cal.App.3d 278, 220 Cal.Rptr. 584.)

Respondents counter that Proposition 13 has been correctly deemed inapplicable to government property described by Section 11 for the following reasons:  Proposition 13 is silent with respect to Section 11 property;  Proposition 13 and Section 11 conflict because they contain different lien dates, different inflation factors, and different procedures for determining the tax;  therefor, the only way to harmonize the two conflicting constitutional measures is to give effect to both.

B. Analysis

We agree with the trial court in this case of first impression that Proposition 13 does NOT apply to government lands described by Section 11.   Our analysis begins by recognizing that despite the extensive changes brought about by Proposition 13, it “did not repeal or in any way alter the provisions of article XIII, which presently contains 33 separate sections.”  (State Bd. of Equalization v. Board of Supervisors (1980) 105 Cal.App.3d 813, 822, 164 Cal.Rptr. 739.)  Section 11, therefore, remains valid unless it has been impliedly repealed by Proposition 13.

(1) General Principles of Construction

Where, as here, a new constitutional amendment is silent concerning its applicability to an existing constitutional provision and actually conflicts therewith, certain rules of construction are paramount.

 First, constitutional amendments are to be interpreted so as to effect the intent of the voters.  (Lonergan, supra, 27 Cal.3d at p. 863, 167 Cal.Rptr. 820, 616 P.2d 802.)   To determine that intent extrinsic evidence such as ballot arguments and analyses may be considered when the language of the enactment is ambiguous.  (ITT, supra, 37 Cal.3d at p. 868, 210 Cal.Rptr. 226, 693 P.2d 811.)   Apparent ambiguities in constitutional amendments may be resolved also by contemporaneous construction of the Legislature and/or the administrative agencies charged with implementation of the new enactment.  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245, 149 Cal.Rptr. 239, 583 P.2d 1281 [hereafter, Amador Valley ];  accord, ITT, supra, 37 Cal.3d at p. 869, 210 Cal.Rptr. 226, 693 P.2d 811;  Lonergan, supra, 27 Cal.3d at p. 866, 167 Cal.Rptr. 820, 616 P.2d 802.)

 Second, a constitutional amendment is to be construed in harmony with the existing framework of which it forms a part so as to avoid conflict.  (Serrano v. Priest (1971) 5 Cal.3d 584, 596, 96 Cal.Rptr. 601, 487 P.2d 1241.)   Thus, a constitutional provision should not be interpreted to effect an implied repeal of another constitutional provision.  (ITT, supra, 37 Cal.3d at p. 865, 210 Cal.Rptr. 226, 693 P.2d 811.)   The law shuns repeals by implication, particularly where the prior act has been generally understood and acted upon.  (Lonergan, supra, 27 Cal.3d at pp. 868–869, 167 Cal.Rptr. 820, 616 P.2d 802.)

 And finally, well recognized principles of statutory construction, which apply equally to the interpretation of constitutional provisions, teach us that if there is no possibility of harmonizing conflicting provisions, the special provision will prevail over the more general.   (People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 627, 268 P.2d 723).

(2) Proposition 13 Conflicts with Section 11

The differences between Proposition 13 and Section 11 which conflict are conspicuous.  Section 11 establishes a specific, fixed formula under which government land located outside its territories must be assessed annually.   It specifies that such assessment will be at the lower of its current fair market value or the fixed lien dates of 1966 or 1967 and that both are to be multiplied by the “Phillips” factor.   The “Phillips” multiplier reflects a statewide increase in property values which in the post-Proposition 13 period was running at a rate of 5 to 8 percent annually.   Furthermore, Section 11 requires taxable improvements (i.e., structures) to be assessed separately and not included in the base value of the property.

By contrast, real property governed by Proposition 13 must be assessed at its 1975–1976 fair market value, multiplied by a 2 percent annual inflation factor;  newly acquired or constructed property is excepted from this formula and is to be assessed at its current fair market value.   Moreover, Proposition 13 includes improvements in the base value or current market value of the property.

Thus, Section 11 calls for annual assessments;  Proposition 13 does not.   Section 11 calls for a base lien date of 1966 and/or 1967, while Proposition 13 establishes a base as of the 1975–1976 fair market value.  Section 11 applies a significantly different (i.e., higher) growth factor, the “Phillips” factor, which is based on a statewide annual growth rate, rather than a fixed percentage, which may or may not be related to the actual rate of property inflation.  Section 11 omits improvements in determining base value, while Proposition 13 includes them.   Proposition 13's assessment value is therefore much closer to an acquisition value assessment (adjusted) than Section 11, which more closely resembles a fair market value standard.

Appellant argues that Proposition 13 is not in conflict with Section 11 and the two provisions may be harmonized because Section 11 sets only the ceiling and not the floor of taxation of government land;  thus, according to appellant a lower tax according to Proposition 13 would not conflict with Section 11.   We reject the argument for two reasons.   First, Section 11, subdivision (b), reads in pertinent part:  “Taxable land belonging to a local government ․ shall be assessed ․ in an amount that does not exceed the lower of (1) its fair market value times the prevailing percentage of fair market value at which other lands are assessed and (2) a figure derived in the manner specified in this Section for land located in Mono County.”   (Emphasis added.)   The plain meaning of the cited provision is that government land must be taxed at the lower of the two alternatives.   Second, the assessment and taxation schemes set out in Proposition 13 and Section 11, as outlined above, are in conflict.

(3) The Rule Against Repeal by Implication Supports the Continued Viability of Section 11 post-Proposition 13

Respondents correctly contend that application of Proposition 13 to government land located outside its boundaries would result in a “pro tanto” repeal of Section 11.   Application of Proposition 13 would nullify both the Section 11 base year value and its application of the “Phillips” factor.   Under recognized law the presumption against implied repeal is so strong that in order for the second law to repeal or supersede the first there must be a showing that the second law constituted a revision of the entire subject, i.e., the second law was intended to be a substitute for the first.   (Lonergan, supra, 27 Cal.3d at p. 868, 167 Cal.Rptr. 820, 616 P.2d 802;  see also Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 261 Cal.Rptr. 384, 777 P.2d 157.)   Proposition 13 does not constitute a revision of the entire subject of taxation, but amends the Constitution only with regard to certain aspects of real property taxation.   It does not thus accomplish an implied repeal of Section 11.   (ITT, supra, 37 Cal.3d at p. 866, 210 Cal.Rptr. 226, 693 P.2d 811;  Amador Valley, supra, 22 Cal.3d at p. 229, 149 Cal.Rptr. 239, 583 P.2d 1281.)

(4) Proposition 13 Was Not Intended To Repeal Section 11

No language of Proposition 13 explicitly or remotely mentions Section 11.   The voter's intent, determined by reference to ballot arguments, summaries and analyses, never considered Section 11 properties.   Rather, it was directed at ever increasing property taxes being visited on homeowners, and “was widely publicized as a taxpayers' revolt providing tax relief for homeowners.”   (Lonergan, supra, 27 Cal.3d at p. 864, 167 Cal.Rptr. 820, 616 P.2d 802, fn. omitted.)   Nothing in the language of Proposition 13 nor in the ballot arguments nor in the campaign has been brought to our attention which indicates any purpose of Proposition 13 to provide tax relief to counties which own property outside their boundaries.   The purpose in enacting Section 11 was to settle disputes between big cities owning land in small, rural counties by insuring that the latter would receive equitable tax revenues from such property.   The problem arose in how to assess such lands and water rights, because the properties were so unique.  Section 11 thus provided an assessment formula which would assure host counties of an adequate tax base and owner counties of fairness vis-à-vis other host county taxpayers.⁷

(5) Contemporaneous Interpretation by the Legislature Supports the Supremacy of Section 11 over Proposition 13

Following passage of Proposition 13 the California Legislature considered the very issue here raised and concluded that, despite all other provisions, government land should continue to be taxed according to the provisions of Section 11.⁸  It is well settled that “legislative and administrative implementations are traditionally accorded great weight by the courts in construing enactments such as article XIII A.”  (Amador Valley, supra, 22 Cal.3d at p. 246, 149 Cal.Rptr. 239, 583 P.2d 1281).   The courts generally will not depart from such interpretation unless it is clearly erroneous.  (City of Los Angeles v. Rancho Homes, Inc. (1953) 40 Cal.2d 764, 770–771, 256 P.2d 305;  Kern v. County of Imperial (1990) 226 Cal.App.3d 391, 398, 276 Cal.Rptr. 524.)

(6) Section 11's Special Provisions Prevail Over Proposition 13's More General Ones

When it is impossible to reconcile portions of the Constitution, special provisions control over the general provisions and the general and special provisions operate together, neither working the repeal of the other.   (People v. Western Air Lines, Inc., supra, 42 Cal.2d at p. 627, 268 P.2d 723.)   Applying this rule, which also encompasses the mandate to harmonize conflicting constitutional provisions in order to give effect to both (Serrano v. Priest, supra, 5 Cal.3d at p. 596, 96 Cal.Rptr. 601, 487 P.2d 1241), we hold that Proposition 13 did not repeal, supersede, or amend the special restrictions in Section 11;  Proposition 13 governs real property generally, while Section 11 specifically applies to government land and water rights outside its boundaries specifically.  (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist., supra, 49 Cal.3d 408, 261 Cal.Rptr. 384, 777 P.2d 157.)

Other courts determining the application of Proposition 13 to very specific kinds of property have reached conclusions consistent with this analysis.   In Lonergan the issue was whether Proposition 13 was applicable to property on the unsecured roll, which like government property here at issue, was specifically regulated (art. XIII, § 12).   Applying these principles of specificity over general, no repeal by implication and harmonizing conflicting constitutional provisions, the Supreme Court held that Proposition 13 applied to real property on the secured roll, while section 12 continued to apply to property on the unsecured roll.  (Lonergan, supra, 27 Cal.3d at p. 869, 167 Cal.Rptr. 820, 616 P.2d 802.)

Similarly, the issue raised in ITT, supra, 37 Cal.3d 859, 210 Cal.Rptr. 226, 693 P.2d 811 was whether the rollback provisions of Proposition 13 applied to public utility property which was subject to unit taxation pursuant to the specific provisions of article XIII, section 19.   Again, just as with Section 11, Proposition 13 is silent with respect to section 19.   In applying these well-settled rules of interpretation our Supreme Court held the specific provisions of section 19 took precedence over the more general provisions of Proposition 13;  thus, Proposition 13 was held inapplicable to property subject to unit taxation, because this property was specified in Section 19.   In so ruling the court also relied upon the prohibition against implied repeal of constitutional provisions.   It emphasized that Proposition 13 “requires assessment to be based on 1975–1976 value (or the value at the date of acquisition if the property is acquired after 1975–1976).  Article XIII, section 19, however, authorizes the unit taxation of public utility property and, as an essential aspect thereof, annual assessment based on the current value of the property as a going concern.   [Citations.]  If article XIII A were construed to require the assessment of public utility property to be based on its 1975–1976 value, it would pro tanto impliedly repeal article XIII, section 19.”  (Id., at p. 866, 210 Cal.Rptr. 226, 693 P.2d 811, emphasis in original.)

We note that Los Angeles Country Club v. Pope, supra, 175 Cal.App.3d 278, 220 Cal.Rptr. 584, upon which appellant primarily relies, is distinguishable from the government property here at issue.   In Pope the issue was whether the valuation rollback provisions of Proposition 13 were applicable to the nonprofit golf courses regulated by article XIII, section 10.   That section provides that lands in excess of 10 acres that have been used as nonprofit golf courses for at least two years “be assessed on the basis of their use as golf courses rather than on the basis that the land occupied might yield far more as the result of commercial development.”  (Id., at p. 286, 220 Cal.Rptr. 584, emphasis in original.)   The assessor did not challenge the continued restricted use of the golf property, but merely asserted that he was entitled to reassess such properties at their 1982–1983 value rather than the 1975–1976 (Proposition 13) value.   Because neither section 10 nor Proposition 13 contained a fixed formula which defined the value of nonprofit golf courses, the court found no conflict.   Accordingly, the court could harmonize the two constitutional provisions by giving effect to the rollback provisions of Proposition 13 and still value the property according to the dictates of section 10;  it therefore held the contrary provisions of Revenue and Taxation Code section 52, subdivision (c), unconstitutional.

Pope was able to harmonize section 10 and Proposition 13 because section 10 does not contain assessment standards that conflict with those of Proposition 13.  Section 11, unlike section 10, does contain its own base years, inflation factor and alternate assessment procedures each of which competes with those established by Proposition 13.   It is these competing factors which create the conflict and require us to employ well settled principles of constitutional construction.   It is those rules of interpretation which lead to the inevitable conclusion that the general provisions relating to taxation of real property set forth in Proposition 13 do not repeal the specific provisions of Section 11 governing its unique subject—the taxation of government land outside the boundaries of the owner.

The judgment is affirmed.

I dissent.

The issue before this court is quite simple:  did the passage of Proposition 13 (adding article XIII A to the California Constitution) cap the annual increase in the assessed value of real property owned by a local government but located outside its boundaries?   My answer is equally simple:  yes.   Unfortunately very little else about why this is so can be so succinctly stated.

Background

Beginning in 1914 land belonging to a local government but situated outside its boundaries became taxable by the county where it was located.  (Cal. Const., art. XIII, § 1, as amended Nov. 3, 1914.)   This change was adopted in response to the purchase of lands and water rights by Los Angeles and San Francisco in the mountain counties of Mono, Inyo and Tuolumne.   (City of Los Angeles v. County of Mono (1959) 51 Cal.2d 843, 848, 337 P.2d 465.)

In 1968 the voters adopted a new constitutional provision establishing a formula for assessing such properties.  (Cal. Const., art. XIII, former §§ 1.60–1.69.)   Senator George Moscone in the ballot argument in favor of adopting a fixed formula argued that it would “provide a permanent, fair solution to long-standing disputes and costly litigation” which had arisen in part because there was “no fair, agreed upon method of assessing such land and water rights” where there were no comparable properties changing hands to establish fair market values.  (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 5, 1968), argument in favor of Prop. 2, p. 7.)   He also maintained that by tying the formula to the “general increase in property values throughout the State” the assessed value of the lands would rise and “assure continuance of an adequate tax base” for the taxing counties while the rate of that increase would assure “public agencies owning the property that their citizens will not bear more than an equitable share of taxes levied.”  (Ibid.)  Thus, the purpose of the compromise was two fold:  it would assure an adequate tax base to counties where the land was located but it would also prevent those counties from imposing extortionate assessments upon the governmental owners of the land.¹

In 1974 the voters adopted the present form of article XIII, section 11.   That section, which applies to the lands in the case at hand, adopts one formula for assessing “taxable land” belonging to a local government but located in Inyo County and another for similar land located in Mono County.   (Art. XIII, § 11, subd. (b).)  It then provides that “[t]axable land ․ located outside of Inyo and Mono counties shall be assessed ․ in an amount that does not exceed the lower of (1) its fair market value times the prevailing percentage of fair market value at which other lands are assessed and (2) a figure derived in the manner specified ․ for land located in Mono County.”  (Ibid.)  (Emphasis added.)

The method of determining assessed value for government lands outlined in section 11 was in effect as of June 6, 1978, when, by initiative, the voters adopted Proposition 13—adding article XIII A to the California Constitution.  Article XIII A imposed both a tax rate limit—a cap on the “maximum amount of any ad valorem tax on real property” of one percent—and an assessment rollback.  (Cal. Const., art. XIII A, §§ 1 & 2.)   It is the assessment rollback provisions which are crucial in this case.

Article XIII A, section 2 defines “full cash value” of real property as the “valuation of real property as shown on the 1975–76 tax bill under ‘full cash value.’ ”  (Cal. Const., art. XIII A, § 2, subd. (a).)  The article then caps the amount that the full cash value base of real property may appreciate at an “inflationary rate not to exceed 2 percent for any given year.”  (Cal. Const., art. XIII A, § 2, subd. (b).)

Discussion

Because I cannot accept the reasoning advanced by the majority opinion I will explain how I believe the two constitutional provisions can be harmonized and why harmonizing the provisions is compelled by precedent and normal principles of constitutional construction.   Moreover, I will demonstrate why the majority opinion's analysis is untenable.

San Francisco contends that it, like any other taxpayer, should receive the benefit of article XIII A—specifically the two percent per year cap on the increase of the assessed value of its taxable lands.   San Mateo and Alameda as the recipients of the tax revenues argue instead that the formulae of article XIII, section 11 should apply, which in the immediate past have produced an assessment rate increase substantially higher than 2 percent per annum because of the built-in link to statewide increases in property values.

San Mateo and Alameda Counties contend that article XIII A cannot be applied to these lands because, they argue, its provisions conflict with the assessment formulae for such lands prescribed by section 11.   Therefore, to apply Proposition 13's assessment rollback would impliedly repeal section 11.   Repeal by implication is highly disfavored.  (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 419, 261 Cal.Rptr. 384, 777 P.2d 157.)

San Mateo and Alameda Counties insist that article XIII A by its terms requires assessment of all real property at full cash value which, they argue, equates with fair market value.²  In fact, article XIII A, section 2 itself defines what it means by full cash value.  “The full cash value means the county assessor's valuation of real property as shown on the 1975–1976 tax bill under ‘full cash value’․”  (Cal. Const., art. XIII A, § 2, subd. (a).)  At oral argument the parties conceded that there are tax bills for the various parcels bearing a sum under the words “full cash value”, and that the sum on those 1975–1976 tax bills was arrived at by selecting the lower of the two figures described in article XIII, section 11.

Article XIII and article XIII A are consistent with one another.   Article XIII, section 1, subdivision (a) provides in pertinent part:  “When a value standard other than fair market value is prescribed by this Constitution or by statute authorized by this Constitution, the same percentage shall be applied to determine the assessed value.   The value to which the percentage is applied, whether it be the fair market value or not, shall be known for property tax purposes as the full value.”

Article XIII, section 11, subdivision (b) then provides for exactly what section 1 was referring to (that is, a “value standard other than fair market value”) when it prescribes that such lands shall be assessed at an amount not to exceed the lower of two alternative formulae:  “(1) its fair market value times the prevailing percentage of fair market value at which other lands are assessed and (2) a figure derived in the manner specified in this Section for land located in Mono County.”   With the passage of Proposition 13 the figure derived under section 11 and listed on the 1975–76 tax bill became the full cash value base which may then increase no more than 2 percent per year.  (Cal. Const., art. XIII A, § 2, subsections (a) & (b).)

Article XIII A far from conflicting with article XIII, section 11, merely rolls back the assessed value of real property to the values determined under section 11, as of the 1975–76 tax year, and then applies a cap on annual inflationary increases.   By harmonizing the two provisions both are given effect.   The later provision adopts the assessment values fixed by the earlier enactment as of the property's 1975–76 tax bill and applies to those assessments, as to all other assessments of real property in the state, a two percent annual inflationary cap.   Thus the two constitutional provisions are not only consistent with each other but they interlock with one another.

This reading stands on well-settled principles of constitutional construction.   It looks first to the language of the provisions.  (Los Angeles County Transportation Com. v. Richmond (1982) 31 Cal.3d 197, 205, 182 Cal.Rptr. 324, 643 P.2d 941.)   Only in the event of ambiguity may this court turn to evidence of voter intent.  (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798, 268 Cal.Rptr. 753, 789 P.2d 934.)   When constitutional provisions can reasonably be construed to avoid a conflict, such an interpretation should be adopted.  (Serrano v. Priest (1971) 5 Cal.3d 584, 596, 96 Cal.Rptr. 601, 487 P.2d 1241;  accord, Board of Supervisors v. Lonergan (1980) 27 Cal.3d 855, 866, 167 Cal.Rptr. 820, 616 P.2d 802.) ³

Reading the two articles otherwise would require reading into article XIII A language limiting its impact to “some” taxes on “some” real property.   Article XIII A does not permit such limitation.   Its language is clear and absolutely unambiguous in referring to “any ad valorem tax on real property” and to “[a]ll real property not already assessed․”  (Cal. Const., art. XIII A, § 1, subd. (a);  id., § 2, subd. (a), italics added.)

In reaching this result I do not blaze a new trail.   A very similar problem was presented in Los Angeles Country Club v. Pope (1985) 175 Cal.App.3d 278, 220 Cal.Rptr. 584.   That case is, in my view, controlling.   Such is also the view of all the parties.   While counsel for respondent argued that Pope was wrongly decided, she conceded in an admirable display of intellectual honesty that under Pope this case must be reversed.   With far less candor the majority opinion seeks to distinguish the indistinguishable.

In Pope the issue was essentially the same:  were the assessment rollback provisions of article XIII A applicable to land operated as a nonprofit golf course and subject to special valuation provisions under article XIII, section 10.⁴  The county sought to assess the golf course land at present golf course value, rather than use the 1975–76 values called for by article XIII A.  (Los Angeles Country Club v. Pope, supra, 175 Cal.App.3d at p. 285, 220 Cal.Rptr. 584.)

Rejecting the notion that section 10 of article XIII and article XIII A were in conflict the court concluded that there was no evidence of conflict on the face of the initiative measure.   This is clear, the court noted, because article XIII A is absolutely silent about the various types of real property subject to special assessment.⁵  (Los Angeles Country Club v. Pope, supra, 175 Cal.App.3d at p. 287, 220 Cal.Rptr. 584.)

Like the unsuccessful taxing authority in Pope, Alameda and San Mateo Counties point out that Revenue and Taxation Code section 52, adopted by the Legislature in 1979, purports to establish a priority between the two articles by making the valuation provisions of the earlier enacted article XIII, section 11 controlling.⁶  Pope acknowledged that “section 52, subdivision (c) was a legislative attempt to curtail the impact of the taxpayer revolt as expressed by the enactment of Proposition 13, by removing certain property from its application․”  (Los Angeles Country Club v. Pope, supra, 175 Cal.App.3d at p. 286, 220 Cal.Rptr. 584, emphasis added.)   Pope concluded, however, that the Legislature's adoption of section 52 could not operate to restrict the clear impact of the initiative because Proposition 13 was not in conflict with article XIII, section 10.   Therefore, there was no need to inquire into the Legislature's interpretation (embodied in section 52) of the interaction between the two constitutional provisions.  (Los Angeles Country Club v. Pope, supra, 175 Cal.App.3d at p. 287, 220 Cal.Rptr. 584.)   The same result for the same reason fits here.   Section 52 never comes into play because there is no conflict between article XIII, section 11 and article XIII A.

Just as Pope concluded that assessing golf course land on the basis of its golf course use was a “value standard ․ prescribed by this Constitution” (Cal. Const., art. XIII § 1, subd. (a)) and therefore article XIII, section 10 was not in conflict with article XIII A, so the assessment formulae of article XIII, section 11 operate in harmony with the provisions of article XIII A.   Golf courses, like these government-owned lands, are merely real property subject to special assessment rules.   In both instances article XIII A then rolls back those specially determined assessed values to the 1975–76 tax year.

Analysis of the Majority Opinion

Contrary to the assertions of the majority opinion Pope did not hold Revenue and Taxation Code section 52 to be unconstitutional nor did its holding turn upon the absence in the two constitutional provisions of a “fixed formula which defined the value of nonprofit golf courses.”  (Maj. opn., ante, at p. 688.)   The existence or nonexistence of fixed formulae are absolutely irrelevant;  they are red herrings.

The majority opinion's allegiance to principles of constitutional construction is similarly selective.   It is well settled that “[a]s a means of avoiding conflict, a recent, specific provision is deemed to carve out an exception to and thereby limit an older, general provision.”  (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 371, 285 Cal.Rptr. 231, 815 P.2d 304.)   The majority opinion inverts the Izazaga rule.   It insists that article XIII, section 11 as the more specific proposition must survive unscathed the enactment of the more general provisions of Proposition 13.   The argument ignores the fact that section 11 predated, rather than postdated Proposition 13.   Moreover, the two Supreme Court cases upon which the majority opinion relies not only do not turn on the rationale of the more specific controlling the more general they do not involve that reasoning at all.

Nor was Board of Supervisors v. Lonergan, supra, 27 Cal.3d at p. 855, 167 Cal.Rptr. 820, 616 P.2d 802, decided by the Supreme Court on the rationale that the more specific provision of the Constitution should control over the more general one.   Quite the contrary:  the reasoning follows precisely the methodology used by this dissent:  concluding that two constitutional provisions seemingly at odds with one another could be read so as not to conflict, the court declined to rely upon voter intent or interpretations of the provisions advanced by the State Board of Equalization or the Attorney General.  (Id. at p. 866, 167 Cal.Rptr. 820, 616 P.2d 802.)

So, too in ITT World Communications, Inc. v. City and County of San Francisco, supra, 37 Cal.3d at p. 859, 210 Cal.Rptr. 226, 693 P.2d 811, the issue was not one of specificity over generality, but of irreconcilable conflict between two constitutional provisions.   There the Supreme Court was presented with the question of whether unit taxation of public utility property was affected by the adoption of Proposition 13.   Deciding unit taxation could not be characterized either “as the taxation of real property or personal property or even a combination of both, but rather as the taxation of property as a going concern ”, the court concluded that Proposition 13 as a measure directed solely to real property taxation was inapplicable.  (At pp. 864–865, 210 Cal.Rptr. 226, 693 P.2d 811.)   Moreover, the rollback provisions of Proposition 13 by their own terms did not apply to state-assessed property which unit taxed property is.  (At p. 866, 210 Cal.Rptr. 226, 693 P.2d 811.)   Finally, applying Propositions 13's rollback provision to unit valuation would be antithetical to the very concept of looking at the property as a going concern.   To do so would treat utility real property in one way and utility personal property in another.  (At p. 871, 210 Cal.Rptr. 226, 693 P.2d 811.)

In short the majority opinion chooses to find conflict and ambiguity where none exists.   It concludes that whatever the plain, all-encompassing language of Proposition 13 may say, the voters thought they were enacting only tax relief for homeowners.   The ballot pamphlet before the voters belies that assertion.   Indeed, one of the arguments trumpeted by those opposing the measure was that it would provide “nearly two-thirds of the tax relief to BUSINESS, INDUSTRIAL, property owners and apartment house LANDLORDS.”  (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen. Elect. (June 6, 1978) rebuttal to arguments in favor of Prop. 13, p. 58, original emphasis.) ⁷  To maintain in the face of these ballot arguments that the voters intended to limit Proposition 13 to homeowners is to find intent via a clouded and distorting crystal ball.

The majority's opinion is also self contradictory.   It concedes, as it must, that Proposition 13 constituted a “taxpayers' revolt” and is applicable to “real property generally.”  (Maj. opn., ante, at pp. 684, 687.)   Yet we are asked to accept the view that despite what Proposition 13 says—namely that it applies to all real property in the state—it does not apply to this real property.

In summary I am unable to join the majority opinion because:  (1) while repeatedly invoking “well settled principles of constitutional construction,” it ignores those very principles and marches off precisely in the opposite direction by unearthing conflicts with which to justify its resort to a selective reading of the intent of the voters and the Legislature;  (2) it pulls elusive bits of “intent” out of the past with which to shore up a result otherwise at odds both with a common sense reading of the Constitution and with existing authority;  and (3) it finishes all that off by seriously misreading three major decisions, two of which are recent products of the California Supreme Court.

I would reverse the trial court and remand the cause to it so that it in turn could remand to the State Board of Equalization for determination of new assessments consistent with the mandates of both article XIII, section 11 and article XIII A, of the California Constitution.

FOOTNOTES

1.   The Board of Equalization of the State of California was also a defendant in the actions, but prior to judgment the parties stipulated that it was excused from further appearances.

2.   All further references to article(s) are to the California Constitution;  article XIII, Section 11 is cited as “Section 11.”

3.   The “Phillips” factor reflects the per capita growth of assessed values of land statewide.

4.   Section 11, subdivisions (a), (b) and (d) provides as follows:  “(a) Lands owned by a local government that are outside its boundaries, including rights to use or divert water from surface or underground sources and any other interests in lands, are taxable if (1) they are located in Inyo or Mono County and (a) they were assessed for taxation to the local government in Inyo County as of the 1966 lien date, or in Mono County as of the 1967 lien date, whether or not the assessment was valid when made, or (b) they were acquired by the local government subsequent to that lien date and were assessed to a prior owner as of that lien date and each lien date thereafter, or (2) they are located outside Inyo or Mono County and were taxable when acquired by the local government.   Improvements owned by a local government that are outside its boundaries are taxable if they were taxable when acquired or were constructed by the local government to replace improvements which were taxable when acquired.  [¶] (b) Taxable land belonging to a local government and located in Inyo County shall be assessed in any year subsequent to 1968 at the place where it was assessed as of the 1966 lien date and in an amount derived by multiplying its 1966 assessed value by the ratio of the statewide per capita assessed value of land as of the last lien date prior to the current lien date to $766, using civilian population only.   Taxable land belonging to a local government and located in Mono County shall be assessed in any year subsequent to 1968 at the place where it was assessed as of the 1967 lien date and in an amount determined by the preceding formula except that the 1967 lien date, the 1967 assessed value, and the figure $856 shall be used in the formula.   Taxable land belonging to a local government and located outside of Inyo and Mono counties shall be assessed at the place where located and in an amount that does not exceed the lower of (1) its fair market value times the prevailing percentage of fair market value at which other lands are assessed and (2) a figure derived in the manner specified in this Section for land located in Mono County․  [¶] (d) If, after March 1954, a taxable improvement is replaced while owned by and in possession of a local government, the replacement improvement shall be assessed, as long as it is owned by a local government, as other improvements are except that the assessed value shall not exceed the product of (1) the percentage at which privately owned improvements are assessed times (2) the highest full value ever used for taxation of the improvement that has been replaced.   For purposes of this calculation, the full value for any year prior to 1967 shall be conclusively presumed to be 4 times the assessed value in that year.”   (Emphasis added.)

5.   Article XIII A provides in relevant part:  “SECTION 1.  (a) The maximum amount of any ad valorem tax on real property․  [¶] SEC. 2.  (a) The full cash value means the county assessor's valuation of real property as shown on the 1975–76 tax bill under ‘full cash value’ or, thereafter, the appraised value of real property when purchased, newly constructed, or a change in ownership has occurred after the 1975 assessment.   All real property not already assessed up to the 1975–76 full cash value may be reassessed to reflect that valuation․  [¶] (b) The full cash value base may reflect from year to year the inflationary rate not to exceed 2 percent for any given year or reduction as shown in the consumer price index or comparable data for the area under taxing jurisdiction, or may be reduced to reflect substantial damage, destruction or other factors causing a decline in value.”

6.   This was largely due to the “Phillips” factor under which the statewide assessment of property has increased more than 8 percent per year as opposed to the 2 percent annual increase permissible under Proposition 13.

7.   The California Voters' Pamphlet General Election, November 5, 1968, Ballot Measure for Proposition 2 (enactment of § 11), at page 7 reads in relevant part as follows:  “[T]his proposed Constitutional Amendment will provide a permanent, fair solution to long-standing disputes and costly litigation between public agencies such as cities, counties and districts owning taxable land and water rights located outside their boundaries ․ Such lands and water rights are taxable, just like private property.   However, unlike private property there is no fair, agreed upon method of assessing such land and water rights.   Such property is unique.   Actual sales against which to measure fair market values are virtually non-existent.  [¶]  This amendment continues the taxation of these publicly-owned lands, but sets up a state-wide formula so their assessed valuation will increase at a similar rate to the general increase in property values throughout the State, an estimated 5 percent each year.  [¶] This measure will assure continuance of an adequate tax base related to these lands.   It will also assure public agencies owning the property that their citizens will not bear more than an equitable share of taxes levied in the taxing counties.”  (Italics added.)

8.   As enacted in 1979, Revenue and Taxation Code section 52, subdivision (d), provides:  “Notwithstanding the provisions of this division [Rev. & Tax.Code §§ 101–5801], property subject to valuation pursuant to section 11 of Article XIII of the California Constitution shall be valued for property tax purposes in accordance with such section.”  (Italics added.)

1.   It is no small irony that the result reached by the majority opinion in the name of preserving article XIII, section 11 has the impact of destroying the compromise between competing interests embodied in that section.   Under the majority opinion's reading of the constitution the counties in which the land is located continue to receive the benefits of the original scheme, but the taxpaying counties are no longer given the protection, accorded all other real property taxpayers in the state, of paying no more than their fair share of taxes.

2.   The counties' argument that “full cash value” and “fair market value” are equivalent cannot be sustained.   Both terms were originally used in the initiative measure as passed by the voters, suggesting that some distinction between the two terms was intended.   Then in 1978 a reference in the subsection to “fair market value base” was deleted.  (See Historical Note, 3 West's Ann. Constitution (1993 pocket supp.) art. XIII A, § 2, p. 92.)   Moreover, in 1978 Revenue and Taxation Code section 110.5 was amended to read:  “ ‘Full value’ means fair market value, full cash value, or such other value standard as is prescribed by the Constitution or in this code under the authorization of the Constitution.”  (Stats.1978, ch. 292, § 28, pp. 608–609.)Obviously a section of the Revenue and Taxation Code cannot control over a constitutional provision.   Yet, the amendment of section 110.5 coming after the amendment of Proposition 13 in the same year suggests legislative intent to clarify what might otherwise be read as inconsistent terminology.

3.   Not only must we seek to harmonize constitutional provisions if we can, but we must avoid finding repeal by implication.  (ITT World Communications, Inc. v. City and County of San Francisco (1985) 37 Cal.3d 859, 866, 210 Cal.Rptr. 226, 693 P.2d 811.)   It is for this reason that the reading advanced by San Francisco is untenable, as the majority opinion correctly notes.  (Maj. opn., ante, at p. 686.)

4.   “Real property in a parcel of 10 or more acres which, on the lien date and for 2 or more years immediately preceding, has been used exclusively for nonprofit golf course purposes shall be assessed for taxation on the basis of such use, plus any value attributable to mines, quarries, hydrocarbon substances, or other minerals in the property or the right to extract hydrocarbons or other minerals from the property.”   (Cal. Const., art. XIII, § 10;  added Nov. 5, 1974.)

5.   “The best that can be said is that article XIII A said nothing about the real property in the counties which was already assessed on a restrictive use basis, but appears to apply to real property, including plaintiffs' golf courses.   Viewed in this manner, we find no constitutional conflict.”  (Los Angeles Country Club v. Pope, supra, 175 Cal.App.3d at p. 287, 220 Cal.Rptr. 584.)

6.   That section provides in pertinent part:  “(d) Notwithstanding the provisions of this division, property subject to valuation pursuant to Section 11 of Article XIII of the California Constitution shall be valued for property tax purposes in accordance with such section.”   (Rev. & Tax.Code, § 52, subd. (d);  added by Stats.1979, ch. 242, § 4, p. 507.)Subdivision (c) (at issue in Pope) in parallel language seeks to make the valuation provisions of article XIII, section 10 regarding the valuation of golf courses control over article XIII A.

7.   The discussion of the Legislative Analyst in the voter pamphlet made it clear to the electorate that the local property tax roll included not only property belonging to homeowners, but also assessments made “on public utilities and railroads.”  (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen. Elect. (June 6, 1978) analysis of Leg. Analyst, p. 56.)   It is worthy of note that the assessment of utility and railroad property is, like that of the government owned property at issue here, described within article XIII, but at § 19.

ANDERSON, Presiding Justice.

PERLEY, J., concurs.