City of Genesee v. Latah County

• Decision Date: 10 May 1894
• Citation: 4 Idaho 141,36 P. 701
• Parties: CITY OF GENESEE v. LATAH COUNTY
• Court: Idaho Supreme Court

36 P. 701

4 Idaho 141

CITY OF GENESEE v. LATAH COUNTY

Supreme Court of Idaho

May 10, 1894

ROAD TAX-COUNTY COMMISSIONERS MUST LEVY-WHEN COLLECTED TO BE PAID INTO COUNTY TREASURY.-Boards of county commissioners must levy a road tax on all property in the county for road purposes, which, when collected, must be turned over to the county treasurer.

SAME-WHERE EXPENDED.-Twenty-five per cent of the property road tax must be expended for road purposes in the road district where collected.

ROAD DISTRICTS OF TOWNS AND VILLAGES.-Incorporated towns and villages as separate road districts are under the exclusive jurisdiction and control of the trustees thereof.

COUNTY TREASURERS-DUTY AS TO ROAD TAX.-County treasurers must hold twenty-five per cent of the property road tax levied and collected by the county within the corporate limits of towns and villages for their use, to be paid over on proper demand.

COUNTY COMMISSIONERS CANNOT INTERFERE WITH HIGHWAYS OF TOWN.-Boards of county commissioners cannot authorize county road overseers to build, repair or in any way interfere with the highways of an incorporated town or village.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Reversed.

S. S Denning, for Plaintiff in Error.

Section 887 of the Revised Statutes of Idaho creates each city in the state a separate road district and confers upon the city council the same powers and enjoins the performance of the same duties imposed upon the board of county commissioners. A municipality may be incorporated under a general law and not by a special charter; yet, when incorporated thereunder, the general act constitutes, and has the same effect, as though specially granted by the legislature. (15 Am. & Eng. Ency. of Law, 911.) A municipality may be estopped by action of its proper officers. (Chicago v. Sexton, 115 Ill. 230, 2 N.E. 263; Martell v. East St. Louis, 94 Ill. 67; Roby v. Chicago, 64 Ill. 447; Chicago R. R. Co v. Joliet, 79 Ill. 39; Logan Co. v. Lincoln, 81 Ill. 156.) Section 6, article 7 of the constitution of Idaho is an inhibition on the legislative branch of the state government from imposing taxes on any municipal corporation of the state, and to such municipal corporation is given the sole and absolute power to "assess and collect taxes for all purposes of such corporation." (San Francisco v London etc. Ins. Co., 74 Cal. 113, 5 Am. St. Rep. 425, 15 P. 380; People v. Parks, 58 Cal. 624, 644; Martin v. Aston, 60 Cal. 63; Ex parte Wolters, 65 Cal. 269, 3 P. 894; Cooley on Taxation, 2d ed., 692, and authorities cited in note 2.) Latah county in the years 1891 and 1892 collected a two mill property road tax from the inhabitants of the town of Genesee, and turned the same into the treasury of Latah county to the credit of the general road fund. An action to recover as for money had and received, is the proper remedy to recover the back tax. (Jefferson School Township v. School Town of Worthington, 5 Ind.App. 586, 32 N.E. 807; Cooley on Taxation, 815.)

George M. Parsons, Attorney General, for Latah County.

The city of Genesse is not the real party in interest and cannot maintain this proceeding. (Rev. Stats., sec. 4090.) A county cannot be made a party in an appeal from an order of a board of county commissioners. (Gorman v. County Commissioners, 1 Idaho 627.) The tax levied by the board of county commissioners is a general tax for general road purposes, and it is not levied for the benefit of districts, but for the benefit of the entire county. (Rev. Stats., sec. 882.) The "road tax" as provided for in sections 882 and 886 is not a tax for town or city purposes, but for county purposes--for the roads and highways of the entire county. The board of county commissioners have control of the public roads, and "to levy such tax therefor as authorized by law." (Rev. Stats., sec. 1759, subd. 4, sec. 870, subd. 7, as amended; 1st Sess. Laws, p. 191.) The city council or trustees have authority to levy a tax for general revenue purposes only. (Rev. Stats., sec. 2238, as amended; 1st Sess. Laws, p. 159.)

The county of Latah levied and collected a property road tax in the town of Genesee, in said county, in and for the years 1891 and 1892. The said town or city of Genesee was during said years a regularly organized municipal corporation under the laws of Idaho. None of said tax so collected was ever expended in said town of Genesee, nor paid over by the county to any person for the use and benefit of the streets of said town. The town of Genesee presented an account to the board of county commissioners of said county for twenty-five per cent of said tax so collected. The commissioners refused to issue a warrant therefor. Appeal was taken to the district court of said town, where action of board of commissioners was approved and affirmed. Thereupon, said cause was brought to this court for review. Reversed.

MORGAN, J. Huston, C. J., and Sullivan, J., concur.

OPINION

MORGAN, J. (After Stating the Facts.)

Section 886 of the Revised Statutes provides that county commissioners shall levy road tax on all property in the county for road purposes. This includes property of towns and villages. The tax so levied and collected was to be turned over to county...