Carson v. St. Francis Levee District

• Decision Date: 21 July 1894
• Parties: CARSON v. ST. FRANCIS LEVEE DISTRICT
• Court: Arkansas Supreme Court

27 S.W. 590

59 Ark. 513

CARSON v. ST. FRANCIS LEVEE DISTRICT

Supreme Court of Arkansas

July 21, 1894

Appeal from Crittendon Circuit Court in Chancery, Jonesboro District JAMES E. RIDDICK, Judge.

John B Jones for appellants.

The theory of our government is that the taxing officers of local districts shall be elected by the local district to be taxed or appointed in some manner to which the district has assented; and that such officers shall be answerable, to those directly interested, for their official acts. Under this act, the directors of the corporation are to be forever appointed by the Governor. The landowners have no voice in the control of the corporation, or the expenditure of the money they pay. The right of local self-government began with the beginning of the civilization of the Anglo-Saxon race and was transplanted here with the common law. It is peculiarly American. It is the birth-right of our race; the sheet anchor of our political freedom; the foundation stone of our structure of government. This act is void, for the reason that it destroys the right of local self-government. The legislature cannot take away the right to local self-government, because the constitution assumes its continuance as the undoubted right of the people, an inseparable incident to republican form of government. Cooley on Const. Lim. (5th ed.) 209; 24 Mich. 88-108; 1 Dill. Mun Corp. secs. 8-9; 1 Beach, Pub. Corp. sec. 87; 25 Mich. 153; 28 Mich. 228; 60 Pa.St. 16; 3 Heisk. 698; 51 Ill. 130; 53 Ill. 111; 71 Ill. 318; 81 Ill. 49; 82 Ala. 242; 2 Metc. (Ky.) 350; 65 Mich. 23; 34 P. 419; 61 F. 436.

Local self-government is the distinguishing feature between a government by the people and the centralized government of a monarchy. Pom. Const., sec. 154. Local self-government is an inherent and inalienable political right of the people. This act is contrary to the following section of our constitution "All political power is inherent in the people, and government is instituted for their protection and security." Sec. 1 of the bill of rights. Sec. 2 of the bill of rights provides, among other things, that "all men have the inherent and inalienable right to acquire, possess and protect property." Sec. 22 provides: "The right of property is before and higher than any constitutional sanction." 42 Ark. 87.

The power to tax is the power to destroy; it is the power to appropriate the money and labor of the people taxed. 3 Heisk. 698. No attribute of sovereignty so controls the destiny of the people as the power of taxation. It is vital to the right of property. The right of local self-taxation and the right of property are inseparable--the one cannot exist without the existence of the other. How protect property with no control over the taxing power? The directors of this corporation are in no wise responsible to the land-owners, who pay the taxes. No person can be safely entrusted with irresponsible power over the property of others. 51 Ill. 130. The right of local self-government, or self-taxation, applies to local assessments as well as to general taxation. 65 Mich. 23; 53 Ill. 111; 2 Metc. (Ky.) 350; 25 Mich. 153; 34 P. 419; 61 F. 436.

That local self-government is an exercise of the taxing power has been over and over again affirmed, until the matter must be considered closed. Cooley, Tax. 623-624. The rule that legislative authority cannot be delegated applies to local assessments the same as to other taxes. Cooley, Tax. 655. The sovereign power of taxation, conferred on the legislature by the constitution, cannot be delegated to any other agency than the agencies provided in the constitution itself. 82 Ala. 242; Cooley, Tax. 61, 62, 63; 1 Desty, Tax. 254, 470; 2 Lea, 444; 9 Baxt. 398; 1 Blackwell, Tax Titles, 118. Sec. 23, art. 2, constitution, provides: "The general assembly may delegate the taxing powers, with necessary restrictions, to the State's subordinate political and municipal corporations, to the extent of providing for their existence, maintenance and well being, but no further." Sec. 27, art. 19, authorizes the delegation of power to lay local assessments in districts within cities and towns. No other power is given by the constitution to delegate the taxing power to any other agency, and no such power exists. 81 Ill. 49; 3 Kas. 199; 51 Ill. 130; 71 Ill. 318; 6 Cold. 127; 54 Mo. 458; 2 Kas. 115; 34 P. 419; 61 F. 436; 42 Ark. 159; Cooley, Tax. 690; 2 Desty, Tax. 1236.

This corporation is not one of the State's subordinate municipal or political corporations, and is not situated within a city or town. The power to tax cannot be delegated to such a corporation. 51 Ill. 130; 71 Ill. 318; 82 Ala. 242; 6 Cold. 127; 2 Metc. (Ky.) 350; 12 Neb. 163; 61 F. 436; 34 F. 419.

All kinds of taxes are provided for and limited by the constitution. Taxation by such a corporation as this has no place in the constitution. Sec. 23, art. 2; sec. 27, art. 19; sec. 4, art. 12; sec. 8, art. 16; sec. 9, art. 16; sec. 3, art. 14; sec. 5, art. 16; and sec. 5, art. 12 of the constitution. Sec. 25, art. 5, constitution, has this provision, among others: "Nor shall the operation of any general law be suspended by the legislature for the benefit of any particular individual, corporation or association." We have a general levee law. Mansf. Dig. c. 95, and Acts of 1887, p. 132. The complaint alleges, and the demurrer admits, that the general law is suspended by this act. The act is void for this reason. 36 Ark. 166.

The police power is limited by the constitution, the same as other legislative power. If this limitation is not observed, the distinction between a government with limited and unlimited powers is abolished. 123 U.S. 661; Tiedeman, Lim. Police Power, sec. 2; Prentice, Police Power, 267; 70 Ill. 191; 2 Dill. Mun. Corp. 142. All cases agree that compulsory drainage is never justifiable, except when the statute declares it to be for the benefit of the public health. Tiedeman, Lim. Police Power, p. 446; Prentice, Police Power, 57-58. Although a statute may purport to be enacted to protect the public health, if it has in fact no real relation to it, or if it invades the rights of property, or the right of local self-government, it is unconstitutional. 65 Mich. 23; 123 U.S. 661; 98 N.Y. 108; 109 N.Y. 98; 12 Neb. 163; 2 Metc. (Ky.) 350; 26 F. 611; 31 F. 680.

The conferring of corporate power by special act promotes lobbying, jobbery and corruption in legislation, and confers unequal privileges on citizens. This is prohibited. "The general assembly shall pass no special act conferring corporate powers, except to charitable, educational, penal or reformatory corporations, when the corporations created are to be and remain under patronage and control of the State." Sec. 2, art. 12, constitutution. This is a corporation, but is not one of the State's subordinate municipal or political corporations. The power of taxation cannot be delegated to it. 51 Ill. 130; 82 Ala. 242; 53 Ill. 111; 6 Cold. 127; 2 Met. (Ky.) 350; 12 Neb. 163; 4 Wheat. 518. The powers attempted to be conferred are corporate powers. All the above cases show this to be a full corporation, and a private corporation. The power of taxation cannot be conferred on a private corporation. It is contended that this is a quasi corporation, and hence not within the restrictions of sec. 2, art. 12, constitution. But, under our constitution, no corporate power can be conferred by special act, whether upon a quasi or a full corporation. 103 U.S. 707; 36 Ark. 166. The case in 42 Ark. 54, has no application to this case. This case was under the constitution of 1868, the same precisely in terms as the constitution of Kansas, and by express terms the prohibition of the conferring of corporate power applied only to stock corporations. But no reference is made to stock corporations in our present constitution. All corporations are within the prohibition, except charitable, educational, penal or reformatory corporations, when the corporations created are to be and remain under the patronage and control of the State. It is contended that, although this is a corporation, the court may disregard the section incorporating it and enforce the act. This would force the court to treat the directors as individuals, and delegate the taxing power to individuals. All acts to be done are corporate acts, and cannot be done by individuals. Strike out the incorporation, and there is nothing left. The rule that a portion of an act may stand, although other portions are unconstitutional, has no application to acts creating corporations. If an act have a double purpose, it may be void as to one and good as to the other; but if the purpose is to accomplish a single object, and some of its provisions are void, the whole of it must fail. Cooley, Const. Lim. 211-212; 21 Ark. 40; 4 Dill. 216. 21 Ark. 60 and 23 Ark. 137 were all under the constitution of 1836. That constitution had none of the limiting provisions of our present constitution, relied upon by appellants. 96 U.S. 97 arose in Louisiana, under a constitution entirely different from ours. 111 U.S. 701 arose in California, also under a different constitution. 48 Ark. 382 was under a law that required the land owners to elect the levee inspectors. The assessments were made by the regular assessor, upon the value of the land, and the taxes were levied by the county court. The act did not attempt to create a corporation. The present act created a corporation, and authorizes it to appoint its own assessors, and levy the taxes itself.

John B. Jones and H. G. Chambers for appellants.

Assessment by benefits is relied on by appellees to sustain this act. Cooley, Tax. 640. But this rule has exceptions, like the one here, where there can be no benefit to the lands assessed. Here is a tract...