Amalgamated Transit Union Legislative Council of Washington State, et al., Respondents, v. The State of Washington, Appellant, Benton County, et al., Respondents, 145 Wash. 2d 544

Owens, J. We revisit the aftermath of Initiative 695 (1-695). When that measure was held unconstitutional, the legislature passed Senate Bill 6865 (SB 6865), repealing the state motor vehicle excise tax (MVET) and setting license tab fees at $30. We now address whether SB 6865 repealed RCW 35.58.273—a municipal tax historically collected with the MVET—by implication. Plaintiffs-Respondents Amalgamated Transit Union Legislative Council of Washington State (ATU) and Washington State Transit Association together represent transit workers’ labor unions and 26 Washington transit agencies.

They filed this action in Thurston County Superior Court seeking a declaratory judgment that SB 6865 did not repeal the special excise tax levied under RCW 35.58.273, and that the State continues to have the duty to collect it. The auditors of a number of counties, defendants below and respondents here, sought a declaration that if the special excise tax is not repealed, it is the State’s responsibility to collect it. The trial court declared that the special excise tax was not repealed, and that the State has the duty to collect it.

Defendant-Appellant State of Washington sought direct review in this court, asserting that the special excise tax was impliedly repealed by SB 6865, and that, if not, either municipal authorities or the county auditors, not the state, must collect it. We affirm the trial court. FACTS Before 1-695, the state imposed the statewide MVET at the rate of 2.2 percent on the value of a motor vehicle. Former RCW 82.44.020(1) (1998), repealed by Laws of 2000, 1st Spec. Sess., ch. 1, § 2, eff. Jan. 1, 2000. 1-695 repealed this tax, and replaced it with a flat fee for license tabs of $30.

After 1-695 was held to be unconstitutional, the legislature enacted SB 6865 in its stead. SB 6865 repealed RCW 82.44.020, the MVET, and certain other code sections (though not nearly as many as 1-695), and set the license tab fee at $30. The legislature had also given municipalities the authority to levy a special excise tax on the value of motor vehicles at a rate not to exceed .725 percent. RCW 35.58.273. The special excise tax may be levied to fund local public transit projects.

For purposes of the special excise tax, “municipality” includes counties, municipal corporations, and various public transit areas whose boundaries do not necessarily follow city, county, or even zip code boundaries. See RCW 35.58.272. Twenty-six local authorities in Washington have levied the special excise tax. However, the legislature provided that the special excise tax would be credited against the MVET. RCW 35.58.273. This meant that a taxpayer living in a municipality that had levied the special excise tax was allowed to credit that tax against her MVET tax liability.

All Washington motor vehicle owners therefore paid the same total tax, 2.2 percent, irrespective of whether they lived in municipalities levying the special excise tax. The effect of levying the special excise tax was that the municipalities were permitted to keep a portion of the state’s MVET revenues. In the ordinances imposing the special excise tax, some municipalities particularly observed that the decision to levy the tax did not increase the tax burden on their constituents. Another effect of the MVET credit was that the special excise tax did not have to be collected separately.

The state had only to share a portion of its MVET revenues with those municipalities levying the special excise tax. The special excise tax is therefore “due and payable” to the Department of Licensing (DOL). RCW 35.58.276; RCW 82.44.060. The special excise tax was never itemized on a taxpayer’s registration form, nor were its funds kept in separate accounts. The legislature simply provided in RCW 82.44.150 for the state treasurer to remit a portion of MVET revenues to the appropriate municipalities if they levy the special excise tax.

RCW 82.44.150(1) directs DOL to advise the state treasurer of the proper amount; RCW 82.44-.150(2)-(3) authorize the deposits; and RCW 82.44.150(4)--(6) provide for reporting by the municipalities receiving the deposits and for ensuring that they have the transit programs in place required for levying the special excise tax. This method was approximate. When a municipality levied the special excise tax, motor vehicle owners residing in the municipality were not separately identified for having some of their MVET remitted to the municipality. Instead, DOL had to use the formula in RCW 82.44.150(1).

DOL multiplied the total MVET revenues from a county by the ratio of the population of the municipality to the population of the county. Thus, a portion of the MVET collected in a county was deemed to be collected from a given municipality based on population, not based on the actual residence of motor vehicle owners. The state treasurer would use these population based figures to establish the total MVET collected from each municipality, and then remit the fraction of the MVET equal to the special excise tax imposed by the municipality.

The duty to make this calculation naturally fell to DOL, since DOL was responsible for calculating the total MVET due from each vehicle owner in the state. Collecting the MVET required DOL to establish the value of a motor vehicle. It accomplished this with the Vehicle Field System, a computer program created, owned, and maintained by DOL. The amount of tax due from a vehicle owner was calculated by the Vehicle Headquarters System, another DOL computer program. The MVET and the special excise tax were historically collected by DOL in cooperation with the county auditors.

DOL had a contract with each county auditor to act as DOL’s agent for collecting the MVET. Although the auditors received checks and distributed license tabs, the checks were payable to DOL, and DOL provided the registration forms and tabs. The contracts state that “DOL has the general responsibility ... for the collection of vehicle and vessel licensing fees, excise taxes and other fees and taxes.” Clerk’s Papers (CP) at 28, 55. 1-695 threw the entire scheme into disarray.

It repealed the MVET itself, RCW 82.44.020, as well as certain other fees and taxes and much of the supporting statutory material, including RCW 82.44.150. 1-695 did not expressly repeal RCW 35.58.273, but many at the time of its passage wondered whether it impliedly did so. In an informal letter to Senator Thibaudeau and Representative Fisher, the attorney general’s office concluded that the special excise tax was impliedly repealed by 1-695, because the continuation of the special excise tax could not be harmonized with repeal of the MVET. CP at 506-09.

In response to 1-695 and that letter, DOL stopped collecting the MVET and the special excise tax on January 1, 2000, and has collected neither since then. ISSUES The first issue we address is whether SB 6865 repealed RCW 35.58.273 by implication. Because we hold that it did not, we also address whose duty it is to collect the special excise tax. ANALYSIS Repeal by implication is strongly disfavored. Tollycraft Yachts Corp. v. McCoy, 122 Wn.2d 426, 439, 858 P.2d 503 (1993).

The legislature is presumed to be aware of its own enactments, and the court will presume that the legislature did not intend to repeal a statute impliedly if the legislature has provided an express list of statutes to be repealed. Ropo, Inc. v. City of Seattle, 67 Wn.2d 574, 578, 409 P.2d 148 (1965). Nevertheless repeal by implication is properly found in either of two situations: [

(1) The subsequent legislation] covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede the prior legislation on the subject, or . . . [(2)] the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot, by a fair and reasonable construction, be reconciled and both given effect. Abel v. Diking & Drainage Improvement Dist. No. 4, 19 Wn.2d 356, 363, 142 P.2d 1017 (1943). The first test boils down to one of legislative intent.

The State points to several facts which it claims show that the legislature meant for SB 6865 to repeal the special excise tax. However, the first observation we make of SB 6865 stems from the canon of construction expressio unius est exclusio alterius—the inclusion of one implies the exclusion of another—and leans strongly against the State. SB 6865 sets forth a list of code sections to be repealed, and RCW 35.58.273 is not among them. If the legislature had intended to repeal RCW 35.58.273, presumably it would have said so.

Our task is to determine if the facts identified by the State showing intent to repeal the special excise tax are more persuasive than this most logical evidence to the contrary. The State notes that the special excise tax was referenced in the final bill report of SB 6865. In the “Background” section, the report says: A local tax was authorized for public transit districts equal to 0.725 percent of the value of the vehicle. The local tax was credited against the state tax. CP at 364; Br. of Appellant App. E at 1. The bill report summarized the effect of 1-695, and the effect of the bill, repealing various taxes.

Where the legislature’s intent is not clear from the words of a statute, we may refer to such legislative history for clarification. Biggs v. Vail, 119 Wn.2d 129, 134, 830 P.2d 350 (1992). The State concludes from the report that SB 6865 was intended to repeal the same statutes the people thought would be repealed by 1-695, and that the legislature showed its intent to repeal the special excise tax by referencing it in a list of other statutes to be repealed. The State’s conclusions from the bill report are plainly wrong.

Even if 1-695 impliedly repealed the special excise tax, which the State assumes without support, it makes no sense to say that SB 6865 was meant to repeal the same statutes as 1-695. Although 1-695 was certainly before the legislature when SB 6865 was being drafted, SB 6865 repeals considerably fewer code sections than were threatened by 1-695. It is readily apparent from the faces of the two acts that SB 6865 repeals less than 1-695. Nor does the reference to the special excise tax show intent to repeal it.

Instead, it shows that the legislature was in fact aware of it (as it is presumed to have been), had the wherewithal to mention it once, and chose not to mention it a second time, where it would certainly have had the effect the State urges, in the text of the bill. The State directs us to the floor debates of SB 6865. Although there was very little debate, it indicates that the legislature meant SB 6865 to restore what 1-695 had done before it was declared unconstitutional.

The State says that the legislature thought 1-695 impliedly repealed the special excise tax because the attorney general’s letter told it so. Therefore, if the legislature had intended SB 6865 to restore 1-695, it must have intended it to repeal the special excise tax. However, this court gives little deference to attorney general opinions on issues of statutory construction. Wash. Fed’n of State Employees v. Office of Fin. Mgmt., 121 Wn.2d 152, 164-65, 849 P.2d 1201 (1993). Moreover, the legislature is presumed to be aware of judicial

interpretations of statutes. In re Marriage of Little, 96 Wn.2d 183, 189-90, 634 P.2d 498 (1981). This court has previously concluded that RCW 35.58.273 is an independent tax, chiefly because it is levied at the discretion of the municipality. Mun. of Metro. Seattle v. O’Brien, 86 Wn.2d 339, 342-46, 544 P.2d 729 (1976). While O’Brien noted that the special excise tax was not an additional tax amount, that did not conflict with its conclusion that it was the municipality’s tax to levy. It is not established that 1-695 impliedly repealed the special excise tax.

Nor does a legislator’s intent to reduce the state excise tax to $30 equate to intent to eliminate local tax powers. References on the senate floor to 1-695 do not reveal intent to repeal the special excise tax. The State argues that two measures enacted to fill the void in transit funding left by 1-695 show that the legislature believed that the special excise tax was repealed. These two measures were a one-time appropriation from the general fund, Laws of 2000, 2d Spec. Sess., ch. 1, § 726, and authorization to transit agencies to impose a higher local sales tax, Laws of 2000, 2d Spec. Sess., ch. 4, § 16.

However, it is equally likely that these measures were meant to alleviate the immediate effects of DOL’s decision to stop collecting both the MVET and the special excise tax. We cannot conclude from the record before us that SB 6865 was meant to repeal RCW 35.58.273. Repeal by implication is also proper if two acts are so clearly inconsistent with, and repugnant to, each other that they cannot, by a fair and reasonable construction, be reconciled and both given effect. The State argues that RCW 35.58.273 cannot be reconciled with repeal of the MVET for three reasons.

The State claims that RCW 35.58.273 is impliedly repealed because the special excise tax can no longer be credited against the MVET, because the apportionment procedure of RCW 82.44.150 no longer makes sense, and because of the administrative difficulty of collecting the special excise tax. These arguments are unconvincing. The special excise tax is not inconsistent with repeal of the MVET simply because it was formerly credited against the MVET.

The tax credit of RCW 35.58.273 is a provision that no longer has any significance, but it does not conflict in any way with levying and collecting the special excise tax. The credit becomes obsolete, but does not cause the underlying tax to fail: cessante ratione legis, cessat et ipsa lex—the reason for the law ceasing, the law itself ceases. The same applies to RCW 82.44.150. This mechanism for remitting part of the MVET back to the municipalities levying the special excise tax also becomes obsolete, but it does not take the special excise tax down with it.

The State argues that the special excise tax cannot be harmonized with repeal of the MVET because the procedure for remitting the special excise tax to the municipalities in RCW 82.44.150 can no longer be carried out. Thus, the State claims, the question is not whether a statute is impliedly repealed, but which statute is impliedly repealed. This argument does not follow. The State seems to be saying that because RCW 82.44.150 cannot be harmonized with SB 6865, then RCW 35.58.273 must be repealed. SB 6865 left much in the code that is now superfluous without the MVET.

For example, RCW 82.44.110 dictated how MVET revenues were to be distributed into various accounts. Obviously this statute is no longer needed, and this court is not required to decide that it has been repealed for the executive branch to stop using it. The trial court properly declared that the State need not comply with those provisions of RCW 82.44.150 that assume the existence of the MVET. The State’s last reason why we should find that the special excise tax has been repealed by implication is the administrative burden that will attend our decision to the contrary.

The boundaries of the districts levying the special excise tax do not in all cases follow city, county, or even zip code boundaries. The trial judge himself acknowledged that only “quagmire” will result from any attempt to collect the special excise tax independently. Verbatim Report of Proceedings at 15-17. However, the State has cited no authority for the proposition that the relative convenience to the executive branch bears on our

interpretation of legislative enactments. Though it may create headaches, repeal of the MVET puts no legal obstacle before the levying and collecting of the special excise tax. Moreover, the State currently collects the Regional Transit Authority (RTA) excise tax under RCW 81.104.160, which presents similar problems in determining who is inside and outside the RTA district. Thus the problems complained of are not insurmountable. The administrative burden of collecting the special excise tax independently does not demonstrate that the tax is inconsistent with repeal of the MVET.

The dissent says we place too much weight on the fact that SB 6865 contains specific repealers and RCW 35-.58.273 is not among them. This is the best possible evidence that the legislature did not intend to repeal RCW 35.58.273, short of a new

section saying so. Citing two cases, the dissent observes that even where legislative intent is this clear, the presumption against repeal may be overcome by even clearer inconsistency. But unlike SB 6865, the enactments at issue in those cases also included extensive substantive provisions directly contrary to the statutes alleged to be impliedly repealed. In Great Northern Railway v. Glover, 194 Wash. 146, 77 P.2d 598 (1938), and El Coba Co. Dormitories v.

Franklin County Public Utility District, 82 Wn.2d 858, 514 P.2d 524 (1973), new enactments included specific repealers but did not include prior laws found to be impliedly repealed. In Great Northern, prior law gave local townships in Spokane County the power to raise revenue and maintain county roads. The new enactments reclassified all Washington roads and gave the same powers to the county commissioners. Great N., 194 Wash, at 153-55. Obviously both entities could not wield the same powers.

In El Coba, the new enactments set out a new comprehensive claims statute governing claims filed against “all political subdivisions” of the state, and had different requirements for suing the defendant public utility district. El Coba, 82 Wn.2d at 861. As in Great Northern, the new enactments in El Coba were obviously incompatible with prior law. What is there in this case? There is a lone substantive provision setting license tab fees at $30 per year, and a list of eight sections to be repealed. The dissent compares this to large, comprehensive, policy-reforming statutory schemes.

But there is no inconsistency in the simultaneous presence of a statewide license tab fee and local taxes on top of it. If there were, then the RTA tax levied under RCW 81.104.160 would be impliedly repealed too. It too authorizes local districts to lay motor vehicle excise tax at their discretion. It differs from the special excise tax in that it was not credited against the MVET and voter approval is required. But neither it nor SB 6865 is inconsistent in the way Great Northern and El Coba demonstrate. Finally, the reason for applying the implied repeal doctrine is not present in this case.

The letter the attorney general sent to the legislature does not show that legislators intended to repeal RCW 35.58.273 because they “had it in mind” when they passed SB 6865: it shows the reverse. It is not logical to say that the legislature was apprised of a statute, passed a bill without mentioning it, and meant to repeal it. We explained why we have a doctrine of implied repeal in Local No. 497, International Brotherhood of Electrical Workers v.

Public Utility District No. 2, 103 Wn.2d 786, 790, 698 P.2d 1056 (1985): This disfavor [for repeal by implication] is the result of a presumption that the Legislature acts with a knowledge of former related statutes and would have expressed its intention to repeal them. However, this presumption runs directly counter to the real probability of legislative oversight that occurs when the Legislature deals with the detail in the mass of statute law within the state. Had the Legislature been aware that it was repealing [RCW 35.58.273], what would it have done?

Searching for legislative intent in these circumstances is usually fruitless. The very reason we must determine repeal by implication is that presumably the Legislature was unaware of the possible repeal result. It is difficult to ascertain intent about something of which one is unaware. (Citations omitted.) It does not make sense to apply the implied repeal doctrine here because of the attorney general’s letter. We cannot presume in this case that the legislature was unaware of the possible repeal result because we know for a fact it was aware of that possibility.

We need not speculate about what the legislature would have done had it known about RCW 35.58.273 because the legislature did know about it—and did not repeal it. ATU’s first amended complaint also sought a declaration that the State is obligated to collect the special excise tax when a municipality elects to levy it. CP at 115. Likewise the county auditors sought a declaration from the trial court of their rights and duties with respect to collection of the special excise tax. See, e.g., Answer of Snohomish County, CP at 376.

The State argues that either the county auditors or the taxing municipalities themselves must collect the special excise tax. The trial court declared that it was the State’s duty to collect it. Again we affirm. The statutory provisions applicable to the special excise tax show that it is the State’s, particularly DOL’s, duty to collect it. We have already noted that the special excise tax is “due and payable” to DOL. RCW 35.58.276; RCW 82.44.060.

The taxpayer has the duty to pay DOL, and so DOL has the ultimate responsibility to receive a taxpayer’s payment, even though county auditors may act as DOL’s agents to take possession of the funds. DOL, not the county auditors, has the right to appoint others. RCW 35.58.276; RCW 82.44.140.

Finally, RCW 35.58.276 specifically provides that the special excise tax is to be “remitted to the state at no cost to the municipality.” Alternatively, the State argues that DOL has the discretion to collect the special excise tax or to leave it for the county auditors, and that DOL has never exercised its discretion to collect the tax. In fact, however, DOL has collected the special excise tax along with the MVET, and has contracted with the county auditors to collect licensing fees and excise taxes as DOL’s agents.

Thus even if the State were correct that DOL’s collection of the special excise tax were discretionary only, DOL has nevertheless assumed that responsibility. DOL also has the statutory authority to calculate the amount of special excise tax due from vehicle owners. RCW 82.44.041 gives DOL the duty and means to determine the value of vehicles owned by Washington residents. DOL has historically done this, and maintains the computer programs to do it.

DOL currently collects all other excise taxes and fees relating to the licensing of motor vehicles, and is the only agency with the power to withhold license tabs for nonpayment. CONCLUSION The trial court correctly declared that the power to levy the special excise tax under RCW 35.58.273 and DOL’s duty to collect it once it is levied are unaffected by SB 6865’s repealing the MVET. The spare legislative history of SB 6865 does not reveal intent to repeal RCW 35.58.273, and the administrative inconvenience of collecting the tax does not amount to legal inconsistency between RCW 35.58.273 and SB 6865.

We are mindful of the awkwardness created by our decision; but, as has been observed, “it is the legislature’s job—not ours—to stem the tide of potential absurd results that might result from impartially applying the plain meaning of statutory language.” The dissent accuses us of ignoring a time-honored canon of statutory construction. But the two tests for implied repeal do not permit wholesale “construction” of language whose meaning is perfectly clear. We are not here debating what SB 6865 means', we know what it means. SB 6865 sets license tab fees at $30 and repeals eight code sections.

No inconsistency results from a municipality’s decision to lay a tax upon itself over and above state taxes imposed by the legislature. Nor is there any way, consistent with prudential decision making, to conclude that SB 6865 evinces the intent to repeal the special excise tax. At very best, the evidence points both ways. This is insufficient to excuse this court from enforcing the people’s laws. Affirmed. Smith, Ireland, Bridge, and Chambers, JJ., concur. Laws of 2000, ch. 1. S.B. 6865, 56th Leg., 1st Spec. Sess. (Wash. Mar. 31, 2000). 1-695 also required voter approval for tax increases.

Laws of 2000, ch. 1, § 2. SB 6865 did not reenact this provision. For purposes of RCW 35.58.273, RCW 35.58.272 defines a “municipality” as: any metropolitan municipal corporation which shall have been authorized to perform the function of metropolitan public transportation; any county performing the public transportation function as authorized by RCW 36.57.100 and 36.57.110 or which has established a county transportation authority pursuant to

chapter 36.57 RCW; any public transportation benefit area established pursuant to

chapter 36.57A RCW; and any city, which is not located within the boundaries of a metropolitan municipal corporation, county transportation authority, or public transportation benefit area, and which owns, operates or contracts for the services of a publicly owned or operated system of transportation!.] RCW 35.58.276 specifically provides that either DOL or the auditors may collect the special excise tax. Except for Yakima County. Sundquist Homes, Inc. v. Snohomish Pub. Util. Dist. No. 1, 140 Wn.2d 403, 416, 997 P.2d 915 (2000) (Sanders, J., dissenting).