Hettinger v. Good Road District No. 1 of Washington County

• Decision Date: 08 February 1911
• Citation: Hettinger v. Good Road District No. 1 of Washington County, 113 P. 721, 19 Idaho 313 (Idaho 1911)
• Parties: PERRY F. HETTINGER, Appellant, v. GOOD ROAD DISTRICT NO. 1 OF WASHINGTON COUNTY, IDAHO, Respondent
• Court: Idaho Supreme Court

113 P. 721

19 Idaho 313

PERRY F. HETTINGER, Appellant, v. GOOD ROAD DISTRICT NO. 1 OF WASHINGTON COUNTY, IDAHO, Respondent

Supreme Court of Idaho

February 8, 1911

GOOD ROAD DISTRICTS - CONFLICT OF PROVISIONS - APPLICATION OF FUNDS-SPECIAL AND LOCAL LAWS-DOUBLE TAXATION-NOTICE OF ELECTION OF ROAD COMMISSIONERS - TIMES OF PUBLICATION OF NOTICE OF BOND ELECTION.

(Syllabus by the court.)

1 Secs. 1056 and 1058 of the Rev. Codes of Idaho, as amended by Laws of 1909, p. 172, are not in conflict in providing for the application and expenditure of the revenue raised in a good road district by the levy made by the road commissioners of the district and the general tax levy made by the board of county commissioners.

2. It is not double taxation for the statute to authorize the board of county commissioners to provide that 75% of the general tax levy raised for road purposes in a good road district shall be expended in such district, and 25% shall go into the county road fund for expenditure in the remaining portions of the county, as there is no taxing the same property twice during the same year for the same purpose while other and similar property is taxed only once during the same period for the same purpose.

3. The good roads law, Rev. Codes, secs. 1049 to 1068, inclusive providing for the organization and government of good road districts, is not a local or special law as used in sec. 19 art. 3 of the state constitution, as it is general in its application, and applies alike to all sections of the state where the taxpayers are willing to assume the burden of additional taxation for the purpose of improving the roads within such sections, and applies to all good road districts within the state, and relates to all of a class.

4. The publication of the notice calling for an election for the purpose of determining whether a good road district should be organized, published once a week for two consecutive weeks beginning with the issue of August 14, 1909, and ending with the issue of August 21, 1909, of the election to be held August 30, 1909, is a compliance with the provisions of sec. 1052, which requires that the notice be published at least two weeks prior to such election.

5. Rev. Codes, sec. 1054, authorizing the issue of bonds of a good road district, provides no method or means of giving notice of the election authorizing such bonds, or the method of conducting the same, and is incomplete, indefinite and incapable of being executed, and is therefore illegal and void.

APPEAL from the District Court of the Seventh Judicial District, for the County of Washington. Hon. Ed. L. Bryan, Judge.

An action to determine the legality of the organization of Good Road District No. 1 of Washington county, and to enjoin the issue of bonds of said good road district. Judgment for defendant. Plaintiff appeals. Judgment modified.

Judgment modified. Costs awarded to the appellant.

Smith & Scatterday, for Appellant.

There was not sufficient notice of the election called for the purpose of determining whether this district should be organized. Sec. 1052, Rev. Codes, provides that such notice shall be published for at least two weeks prior to such an election in a weekly newspaper. The affidavit of publication shows that the notice was published once a week for two consecutive weeks, beginning with the issue of August 14, 1909, and ending with the issue of August 21, 1909, only one week intervening between the first and last publication, and the authorities are not in accord as to whether that constitutes publication for two weeks. (29 Cyc. 1121; Market Nat. Bank v. P. Nat. Bank, 89 N.Y. 398; Loughridge v. Huntington, 56 Ind. 253; Stephenson v. Texas & P. Ry. Co., 42 Tex. 162; Mitchell v. Woodson, 37 Miss. 567.)

B. S. Varian, for Respondent.

It may be presumed that proper notices of election were given, for it is a rule of very general application that, where an act is done which can be done legally only after the performance of some prior act, proof of the latter carries with it a presumption of the due performance of the prior act. (Knox County v. Nat. Bank, 147 U.S. 91, 13 S.Ct. 267, 37 L.Ed. 93.)

The legislature has sought in the good road district law to provide, so far as practicable, for the payment by the good road district of a fair proportion of the maintenance and repair expense of public bridges and public highways without the district, and which are directly and indirectly a benefit to the district. The highways of the county may be considered as one general system of which the different districts and good road district form parts. To facilitate intercourse between the inhabitants of the various districts, it is fair and reasonable that all should be taxed to defray the expense of building a bridge that otherwise could not be constructed on account of its great cost. (Humbird Lumber Co. v. Kootenai County, 10 Idaho 490, 79 P. 396; citing 1 Cooley on Taxation, 3d ed., 394; 27 Am. & Eng. Ency. of Law, 2d ed., 607.)

The following cases tend to support the contention that the publication of the notice twice in a weekly paper is sufficient two weeks' notice: Sherwood v. Wallin, 154 Cal. 735, 99 P. 191; Nevada v. Yellow Jacket S. M. Co., 5 Nev. 418; Ricketts v. Hyde Park, 85 Ill. 110; Elder v. Horseshoe Mining & Milling Co., 194 U.S. 248, 24 S.Ct. 643, 48 L.Ed. 960; Swett v. Sprague, 55 Me. 190; Olcott v. Robinson, 21 N.Y. 150, 78 Am. Dec. 126; Wood v. Morehouse, 45 N.Y. 369; Tidd v. Grimes, 66 Kan. 401, 71 P. 844; Knox County v. Nat. Bank, 147 U.S. 91, 13 S.Ct. 267, 37 L.Ed. 93.

Ed. R. Coulter, Amicus Curiae.

The law governing the organization and operation of irrigation districts is "general," because it applies to all irrigation districts in the state. (Boise Irr. etc. Co. v. Stewart, 10 Idaho 38, 77 P. 25, 321; sec. 121, Sutherland, Stat. Const.)

If counsel's contention is correct, then the scheme devised by the legislature for the running of municipalities and the running of independent school districts is also unconstitutional and void. If the tax in one case is duplicate, it is in the others. This question is settled in Humbird Lumber Co. v. Kootenai County, 10 Idaho 490, 79 P. 396.

STEWART, C. J. Sullivan, J., concurs, AILSHIE, J., Concurring Specially.

OPINION

STEWART, C. J.

This action was brought for the purpose of having determined the legality of the organization of Good Road District No. 1 of Washington county and a proposed issuance and sale of bonds of said district in the sum of $ 10,000, to be issued for the purpose of raising funds with which to construct roads in said district.

The cause was tried and a judgment rendered, adjudging that Good Road District No. 1 was in all respects legal and valid, and that the proposed bond issue of said district in the sum of $ 10,000, bearing interest at the rate not to exceed 6% per annum, and maturing in twenty years with the privilege of redemption after ten years, authorized at an election held on the 7th day of April, 1910, was in all respects legal and valid, and that said bond issue was a legal and valid obligation of said Good Road District No. 1.

A motion for a new trial was made and overruled, and this appeal is from the judgment and from the order overruling the motion for a new trial.

Appellant assigns five errors. First, that there is such a conflict between the provisions of Rev. Codes, secs. 1056 and 1058, as amended by Laws of 1909, p. 172, as to be irreconcilable and therefore renders such act invalid and inoperative. Sec. 1056, supra, among other things provides: "For the purpose of providing moneys for the more extensive improvement of roads in such districts, there is hereby appropriated and the county auditor shall set apart seventy-five per cent (75%) of the general tax levy raised for road purposes in the district to the credit of such district, which shall constitute a fund for the improvement of the roads in such districts." While sec. 1058, supra, among other things provides: "When any such good road district is organized under the provisions of this chapter, it shall supersede all other road districts or parts of districts within the limits of such good road district, and the good road commissioners shall have the power to levy and apply all road taxes collected within their respective districts."

It is very clear, however, that when these two sections are carefully examined there is no conflict in their provisions. Sec. 1056 makes it the duty of the board of good road commissioners of a district to provide for a tax levy each year within their respective districts, upon the assessable property within such district, sufficient to pay the interest on bonds outstanding against such district, also to pay any other indebtedness incurred during the year in which such levy is made. And this section further provides: "For the purpose of providing moneys for the more extensive improvement of roads in such district, there is hereby appropriated and the county auditor shall set apart seventy-five per cent (75%) of the general tax levy raised for road purposes in the district to the credit of such district."

While this section provides for two sources for the raising of revenues to be used in a good road district, the first by a special tax and the second by the general tax levy made by the board of county commissioners, still it is apparent that the language used in sec. 1058, "and the good road commissioners shall have the power to levy and apply all road taxes collected within their respective districts," has reference to the taxes levied and collected by the board of good road commissioners within the district, and has no reference to the 75% of the general tax levy made by the board of county commissioners,...