Fenton v. Board of County Commissioners of Ada County

• Citation: 20 Idaho 392,119 P. 41
• Parties: JAMES A. FENTON, Respondent, v. BOARD OF COUNTY COMMISSIONERS OF ADA COUNTY, Appellants
• Decision Date: 30 October 1911
• Court: Idaho Supreme Court

119 P. 41

20 Idaho 392

JAMES A. FENTON, Respondent, v. BOARD OF COUNTY COMMISSIONERS OF ADA COUNTY, Appellants

Supreme Court of Idaho

October 30, 1911

APPEAL-MANDATE-CONSTITUTIONAL AND STATUTORY CONSTRUCTION-TAXATION - DELEGATION OF POWER - COUNTY COMMISSIONERS - MUNICIPAL CORPORATIONS-SCHOOL DISTRICTS-BODY CORPORATE-POWER OF LEGISLATURE-STATUTE MANDATORY.

(Syllabus by the court.)

1. Under the provisions of sec. 1950 of the Rev. Codes, an appeal may be taken from any act, order, or proceeding of the board of county commissioners by any person aggrieved thereby or by a taxpayer of the county.

2. Held, under the provisions of said section that an appeal may be taken from the order of the board making a levy of taxes under the provisions of sec. 65 of the school laws of 1911 Sess. Laws, p. 483.

3. The case of Feltham v. Board of County Commissioners, 10 Idaho 182, cited and distinguished.

4. Held, that it was not reversible error to admit in evidence the stipulation of facts in the case.

5. Where an appeal is given by law and such appeal is not a plain, speedy and adequate remedy in the due course of law, a resort may be had to mandamus.

6. The provisions of sec. 2 of art. 7 of the constitution which declare "that the legislature shall provide such revenue as may be needful by levying a tax by valuation," etc applies to the raising of revenue for state purposes.

7. Under the provisions of sec. 6 of art. 7 of the constitution the legislature is prohibited from imposing taxes for the purpose of any county, city, town or other municipal corporation, but may by law vest in the corporate authorities the power to assess and collect taxes for all purposes of such corporations.

8. Held, that said section is an inhibition on the legislature from imposing taxes for any of the purposes mentioned in said section.

9. Held, that a school district is not a municipal corporation within the meaning of said section 6, art. 7 of the constitution.

10. Under the provisions of sec. 1, art. 9 of the state constitution, it is made the duty of the legislature to establish and maintain a general, uniform and thorough system of public, free common schools, and the legislature has a large discretion under the provisions of the constitution in making laws to accomplish said purpose.

11. Under the provisions of sec. 11 of art. 18 of the constitution, county, township, and precinct officers must perform such duties as shall be prescribed by law.

12. Under the provisions of the constitution, the legislature had the authority to require the board of county commissioners of each county to levy a tax of not less than five mills nor more than ten mills on each dollar of taxable property in their respective counties for school purposes.

13. Held, that sec. 65 of an act providing a code of laws on education for the public school system of Idaho, etc., Sess Laws 1911, p. 483, is not repugnant to the provisions of the state constitution, and that its provisions are mandatory.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Action by a taxpayer to have a certain order of the board of county commissioners of Ada county, levying and fixing a tax of three mills on the dollar for general school purposes for the county for the year 1911, set aside and annulled. Judgment for plaintiff. Affirmed.

Affirmed.

D. C. McDougall, Attorney General, J. H. Peterson, and O. M. Van Duyn, Assistants to the Attorney General, C. P. McCarthy, and Martin & Martin, for Appellants.

An appeal from any act of the board of county commissioners will only lie when directly authorized by statute, and unless there is some statute of the state which in express terms authorizes such an appeal, it cannot be taken. (Feltham v. Board of County Commrs., 10 Idaho 182, 77 P. 332; Humbird Lumber Co. v. Morgan, 10 Idaho 327, 77 P. 433; General Custer Mining Co. v. Van Camp, 2 Idaho 40, 3 P. 22; Olympia Water Co. v. Thurston Co., 14 Wash. 268, 44 P. 267.)

Sec. 2, art. 7 of the constitution, which reads in part as follows: "The legislature shall provide such revenue as may be needful by levying a tax by valuation," is a restriction on the power of the legislature, and the legislature cannot authorize the levy of any tax in an amount in excess of what is needful or necessary for the purpose for which it is levied, and any attempt to authorize a levy in excess of such necessity is contrary to this provision of the constitution, and as to such excess the attempted levy would be void. This section of the constitution applies to all tax levies, whether for state, county or other purposes, which may be authorized by the legislature. The county commissioners being the board authorized to make the levy, had the right to investigate under this section of the constitution the necessity in connection with the amount of the levy to be made. (State v. County of Multnomah, 13 Ore. 287, 10 P. 635.)

When the legislature grants the power to tax to another tribunal, it can only be exercised in strict conformity to the terms in which the power is granted, and a departure in any material part will be fatal to the attempt to exercise it. (Judge v. Taylor, 71 Ky. 206; People v. Lake Erie & W. R. Co., 167 Ill. 288, 47 N.E. 518; Gage v. Graham, 57 Ill. 144.)

A school district is a municipal corporation within the meaning of sec. 6, art. 7, of the constitution. A school district is a body corporate (Rev. Codes, sec. 614; 1 Dillon, Mun. Corp., 4th ed., secs. 19-27, inc.), and a municipal corporation as that term is used in our constitution. (Maxon v. School District, 5 Wash. 142, 31 P. 462, 32 P. 110; State v. Grimes, 7 Wash. 191, 34 P. 833; Commissioners of Public Instruction v. Fell, 52 N.J. Eq. 689, 29 A. 816, 817; Davis v. Steuben Twp., 19 Ind.App. 694, 50 N.E. 1, 4.)

This constitutional provision was adopted from the state of Colorado, and at the time of its adoption the supreme court of that state had held definitely that a school district was a municipal corporation. (People ex rel. v. County Commrs., 12 Colo. 93, 19 P. 892.)

If this court should hold that sec. 65, p. 510, Sess. Laws of 1911, is valid and mandatory, then the legislature has, in effect, levied upon all the property of the county a tax of five mills for general school purposes, and the county commissioners, in making the levy, are performing only a ministerial duty. (People v. County Commrs., 12 Colo. 93, 19 P. 892; Hughes v. Ewing, 93 Cal. 418, 28 P. 1067; Board of Education v. Board of Trustees, 129 Cal. 603, 62 P. 173; State ex rel. Wyatt v. Ashbrook, 154 Mo. 375, 77 Am. St. 765, 55 S.W. 627, 48 L. R. A. 265; Waterhouse v. Board, 8 Heisk. (Tenn.) 857; People v. Martin, 60 Cal. 153; People v. Lodi High School, 124 Cal. 694, 57 P. 660.)

Wyman & Wyman, for Respondent.

An appeal lies from an order of the board of county commissioners levying a tax. (Village of Ilo v. Ramey, 18 Idaho 642, 112 P. 126; Reynolds v. Board, 6 Idaho 787, 59 P. 730; School District v. Rice, 11 Idaho 99, 81 P. 155.)

The act in question provides that the board "shall levy a tax of not less than five mills nor more than ten mills on each dollar of taxable property." The command is absolute, and in addition, negative words are used. (Lewis' Sutherland Stat. Const., secs. 611-627; 36 Cyc. 1158, 1159; 11 Cyc. 576; Cooley on Taxation, 280, 476-479; Pacific E. Co. v. Los Angeles, 118 F. 746; State v. Russell, 90 Iowa 569, 58 N.W. 915, 28 L. R. A. 195; Koch v. Bridges, 45 Miss. 247; Hurford v. City of Omaha, 4 Neb. 336; Bladen v. Philadelphia, 60 Pa. 464; Smith v. Chicago etc. R. Co., 124 Wis. 120, 102 N.W. 336.)

The legislature is directed by the constitutional provision to vest the power in counties, cities, etc. , to assess and collect taxes. If the legislature grants this power to the subordinate subdivision of government, it has the right to say by the grant in what manner this power shall be exercised. (Ex parte P firrmann, 134 Cal. 143, 66 P. 205; Baldwin v. City Council, 53 Ala. 437; Vance v. City of Little Rock, 30 Ark. 435; State v. Yellowstone Co., 12 Mont. 503, 31 P. 78; State v. Hannibal etc. Co., 87 Mo. 236; 28 Cyc. 1659, 1660.)

It has always exercised this power of limitation on the amount of tax levies that may be laid by these taxing bodies. (City of Genesee v. Latah Co., 4 Idaho 141, 36 P. 701.)

Neither the statutes nor the constitution of this state deal with or treat school districts as municipal corporations. (28 Cyc. 131.)

SULLIVAN, J. Stewart, C. J., concurs, AILSHIE, J., Dissenting.

OPINION

SULLIVAN, J.

This is an appeal from an order of the board of county commissioners of Ada county, whereby they levied a tax of three mills on the dollar on all taxable property in Ada county for general school purposes. An appeal was taken from said order of the board to the district court, and after a trial before that court the order of the board was set aside, and judgment against the commissioners entered and the cause was remanded to the board with directions to proceed in accordance with law, from which judgment the board of county commissioners appeal. Upon perfecting the appeal to the district court, the board appeared and moved to dismiss the appeal on the ground that the order in question was not an appealable order and that if the appellant had any remedy it was by mandamus.

The question of whether an appeal lies from such an order of the board is presented on this appeal. It is provided by sec. 1950 of the Rev. Codes that "An appeal may be taken from any act, order or proceeding of the board by any person aggrieved thereby or by any taxpayer of the county when any demand is allowed against the county, or when he deems any such act, order or proceeding, illegal or...