Cunningham v. Thompson

• Decision Date: 28 April 1910
• Citation: 18 Idaho 149,108 P. 898
• Parties: ARCH CUNNINGHAM, Appellant, v. W. H. THOMPSON, D. H. MOSELEY and A. P. BURNS, as the Board of County Commissioners of Ada County, Respondents
• Court: Idaho Supreme Court

108 P. 898

18 Idaho 149

ARCH CUNNINGHAM, Appellant, v. W. H. THOMPSON, D. H. MOSELEY and A. P. BURNS, as the Board of County Commissioners of Ada County, Respondents

Supreme Court of Idaho

April 28, 1910

STATUTES-WHEN VOID-ROADS-SPECIAL TAX-BOARD OF COUNTY COMMISSIONERS-POWER TO TRANSFER FROM CURRENT EXPENSE TO ROAD FUND.

(Syllabus by the court.)

1. A section of a statute which provides for raising a fund to pay bonds by a special tax and which provides no machinery or method for carrying into effect such section, will be held to be inoperative and void.

2. Sec 21 of an act approved March 16, 1909 (Laws of 1909, p. 274) commonly known as "The Good Roads Law," imposes no duty upon the board of county commissioners to levy the special tax referred to in such section, and provides no method or manner of levying such tax or the collection of the same, and provides no machinery for carrying said section into execution, and is therefore inoperative and void.

3. It is the law in this state that if the provisions of an act are connected in subject matter, dependent on each other, and designed to operate for the same purpose, or are otherwise so dependent in meaning that it cannot be presumed that the legislature would have passed one without the other, then if one part falls, the entire act must fall.

4. Held, that sec. 21 of the act of March 16, 1909 (Laws of 1909, p. 274), is an essential and necessary part of said act, and that it clearly appears that the legislature would not have passed said act without sec. 21 having been made a part thereof, and that sec. 21 and sec. 20 were designed by the legislature to operate for the same purpose-that is, to provide the method of creating a fund for the construction and maintenance of the roads of the county, and that each section depends upon the other.

5. Held, that sec. 21 being inoperative and void, the entire act is void.

6. The emergency contemplated by Rev. Codes, sec. 937, which authorizes the board of county commissioners to transfer funds from the current expense fund to the road fund, was such emergency as might arise out of the actions of the elements in destroying or injuring roads or bridges, and not emergencies arising by the failure of the legislature to authorize the levying of an adequate tax to keep the roads in such condition as the board of commissioners deem they should be kept in, or emergencies arising because of inoperative and void acts of the legislature in creating such road fund.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

An appeal from a judgment of the district court affirming an order of the board of county commissioners transferring money from the current expense fund to the road fund. Reversed.

Judgment of the district court reversed. Costs awarded to appellant.

E. J Frawley, for Appellant.

If an act of the legislature is so vague and uncertain in its terms as to convey no meaning, or if the means of carrying out its provisions are not adequate or effective, or if it is so conflicting and inconsistent in its provisions that it cannot be executed, it is incumbent upon the courts to declare it void and inoperative. (Hillborn v. St. Paul Ry. Co., 23 Mont. 229, 58 P. 551, and cases cited.)

If it is plain that the legislature would not have passed the valid portions of the law without the invalid portion, the entire act must fall. (In re Hendricks, 60 Kan. 796, 57 P. 965.)

M'Cready Sykes, for Ada County Good Roads Assn., amicus curiae.

The law is undoubtedly in some respects a bungling and defective piece of legislation. This distinction, however, is not unique in American legislation, and what we have to do is to take the law as we find it, and the fact that it is crude and incomplete throws little or no light on the question of its constitutionality. Unless it violates some provision of the constitution, it is a valid exercise of legislative power, however badly done it may be, and under our system of government the remedy for its defects must be found in the proper and lawful process of amendment at the hands of the lawmaking body. (Wright v. Kelley, 4 Idaho 629, 43 P. 565.)

Chas. P. McCarthy and Cavanah & Blake, for Respondents, cite no authorities.

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

The appellant, a resident taxpayer of Ada county, appealed to the district court from the following order made by the board of county commissioners:

"WHEREAS, It appears to this board of county commissioners that the maximum amount of eighty cents on one thousand dollars on the assessable property in Ada County, which can be levied for road purposes for the fiscal year beginning on the second Monday in January, 1910, will yield approximately the sum of $ 8,000.00; and,

"WHEREAS, It appears that during the fiscal year beginning on the second Monday in January, 1910, it will be necessary for this board of county commissioners in keeping the public highways within said Ada County in repair and in a safe condition for public travel to expend not less than the sum of $ 20,000.00; and,

"WHEREAS, It appears that the amount of money that can be raised by levying the maximum rate provided for by law for road purposes will be entirely insufficient to keep the public highways of Ada County in repair and in a safe condition for public travel, and that it will be necessary for this board to cause to be transferred from the current expense fund of said Ada County to the road fund the sum of at least $ 12,000.00 for road purposes;

"NOW, THEREFORE, BE IT RESOLVED, That for the purpose of providing sufficient finances to keep the roads and bridges of Ada County, State of Idaho, in repair and in a safe condition for public travel during the fiscal year beginning on the second Monday in January, 1910, the amount of $ 12,000.00, be, and the same is hereby transferred from the current expense fund of said Ada County for said fiscal year for the county road fund for said year. The said sum of $ 12,000.00, so transferred to the county road fund to be used to meet the necessary cost and expenses of constructing, maintaining and repairing roads and bridges during the said fiscal year.

"And be it further resolved, That a special tax not to exceed one-half of one per cent on the taxable property of said Ada County be levied annually until the said amount of $ 12,000.00 so transferred from the current expense fund to the county road fund is raised and paid."

The cause was tried in the district court and the order of the board of county commissioners was sustained and affirmed. From that judgment this appeal was taken. It is contended by appellant that the board of county commissioners had no authority to make the order appealed from, for the reason that such order was made by reason of the provisions of an act approved Mar. 16, 1909 (Laws of 1909, p. 274), commonly known as "The Good Roads Law," which act is inoperative and void.

It may be conceded that if what is known as "The Good Roads Law" is void, then the county commissioners had no authority to enter the order appealed from and the same should be annulled and set aside. Referring to this act it will be observed that two methods are provided for raising revenue for road purposes; the first is by levying a road tax which shall not exceed eighty cents on each one thousand dollars of the assessed valuation of the property taken from the assessment-roll for the preceding year; the second, by issuing bonds of the county upon a two-thirds vote of the electors of the county, and the creation of special taxing districts extending along the course of a road or highway, and by levying a special tax upon the lands within said district to pay such proportion of such bonded indebtedness as the board may determine. The second method thus provided for is embraced in the provisions of sec. 21 of this act, and it is the contention of appellant that this section is so indefinite, uncertain and incapable of execution that it is void, and because such section is void the entire act is void. By the provisions of this section it no doubt was the intention of the legislature to provide a method by which, when bonds were authorized to be issued by a vote of the electors of the county for the purpose of constructing or improving a particular line of road or a bridge, the cost of constructing or improving such road should be partly assumed and paid by the county as a whole and partly assumed and paid by a taxing district, including certain lands especially benefited by the construction of such road. After providing for the method of voting bonds said section provides: "And in addition may provide for the creation of a special taxing district, extending along the course of such road, or highway; such taxing or assessment district shall consist of the land and property which shall abut such highway, when it shall have been constructed, and all other lands near by, which, in the judgment of the commissioners, will be especially benefited by such highway. Such special taxing or...