Humbird Lumber Co. v. Kootenai County

Decision Date31 December 1904
PartiesHUMBIRD LUMBER COMPANY v. KOOTENAI COUNTY
CourtIdaho Supreme Court

APPEAL from District Court in and for Kootenai County. Honorable Ralph T. Morgan, Judge.

The board of commissioners of Kootenai county made an order on the thirtieth day of January, 1903, levying a special property road tax on all the taxable property within Kootenai county, and from the order so made, the Humbird Lumber Company, a corporation, owning property within said county appealed to the district court. The order of the board of commissioners was affirmed by the district court, and the appellant thereupon appealed to this court. Judgment and order affirmed.

Judgment of the trial court affirmed. Costs awarded to respondent.

Charles L. Heitman and M. J. Gordon, for Appellant.

The assignments present but a single question, and that goes to the constitutionality of the act of the legislature of the state of Idaho under which the levy made by the respondents and complained of by the appellant was made. That act was approved on March 5, 1901, and is entitled "An act providing for a special property road tax and defining the duties of officers in the levy and collection thereof." It will be noticed that it was admitted at the trial that in addition to the levy embraced in the order appealed from, the board of commissioners on the 14th of September, 1903, levied a tax of thirty cents on the hundred dollars' valuation on all taxable property in said county, as and for the general road fund; and that in making this last-mentioned levy, the board proceeded upon the authority conferred by section 1168 of the Political Code of 1901. It is the contention of the appellant that as a result of these separate levies, the property owned by them, situated within the county of Kootenai, has been twice called upon within the same year to directly contribute to the same burden; and they invoke that clause of section five (5), article seven (7) of the constitution of Idaho which provides, "That duplicate taxation of property for the same purpose during the same year is prohibited." The inhibition contained in this constitutional clause extends to all property, and the only policy which is sanctioned is that for a given purpose, taxable property must respond once and only once during a given year. It does not deal or profess to deal with "duplicate taxation" as meant and discussed by Cooley and the other writers. It does not deal or profess to deal with the subject of "equality and uniformity" as discussed in the text-books. It is neither ambiguous nor uncertain. Reasoning and argument cannot make the proposition clearer. Here section 1168, supra, provides for an "annual tax" on property by valuation for "road purposes," and section 1169 provides for a "special" tax on property by valuation as and for a "road tax." (City of Genessee v. Latah County, 4 Idaho 141, 36 P. 701.)

Thomas H. Wilson, County Attorney, and C. W. Beale, for Respondents.

Fortified by the statute on appeals from orders of the board of county commissioners (section 1778, as amended by the act of February 14, 1899, Sess. Laws 1899, p. 249), and the decision of this court in Clyne v. Bingham County, 7 Idaho 75, 60 P. 76, our contention is that the failure on the part of the appellant to cause to be transmitted to the district judge a copy of the notice of appeal, and the order and proceedings appealed from within five days, or within any time or at all, absolutely prevented the lower court or judge from entertaining any jurisdiction whatever, and that, under said decision, the judge of the lower court should have entered up a judgment dismissing said pretended appeal. There was absolutely no authority for the filing of the complaint and answer set forth in the bill of exceptions. The only record upon which the court could hear the appeal was the record made before the board of county commissioners. Counsel can neither stipulate away the rights of the people nor inject into a special proceeding a system of pleading unauthorized by the statute. (Board of Commissioners v Denver Union Water Co., 32 Colo. 382, 76 P. 1060, at par. 4, p. 1062.) It is possibly true that, prior to the adoption of our constitutions, the expressions in other constitutions that "all taxes shall be equal and uniform," "according to a valuation," or the like, were by the majority of the decisions held to forbid duplicate or double taxation, while in other jurisdictions the same construction was not always placed upon such provisions. (27 Am. & Eng. Ency. of Law, 2d ed., pp. 607, 608.) The constitutional provision contained in said section 5, article 7, with reference to uniform and double taxation, has reference only to taxation pure and simple, according to the commonly accepted meaning of that term, for the purpose of revenue only and not for the purpose of a special school or road tax. (State v. Dougherty, 3 Idaho 384, 29 P. 855; State v. Union Cent. Life Ins. Co., 8 Idaho 240, 67 P. 647; 25 Am. & Eng. Ency. of Law, 2d ed., p. 1174.) Taxation for special purposes is not prohibited although the same property is also taxed for general purposes. (Hilgenberg v. Wilson, 55 Ind. 210; Drysdale v. Pradat, 45 Miss. 445; City of St. Joseph etc. R. Co. v. Saville, 39 Mo. 477.) A tax upon a county for the support of the insane asylum is not duplicate taxation, although a general tax is levied for the support of such institution. (Bon Homme County v. Berndt, 15 S. Dak. 494, 90 N.W. 147; State v. County of Douglas, 18 Neb. 601, 26 N.W. 378.) Although a special assessment has been levied on land to pay part of the cost of a local improvement, it is still subject to a general tax to pay the balance. (French v. Barber Asphalt Paving Co., 181 U.S. 324-343, 21 S.Ct. 625, 45 L.Ed. 879; State v. Newark, 48 N.J.L. 101, 2 A. 627; State v. Newark, 49 N.J.L. 239, 12 A. 770.) Assuming, for the sake of argument, that all moneys collected under the general road tax were to be expended in the same road district where the moneys collected under the special road tax are to be expended, how, then, could it be contended that this was duplicate taxation, since it affects all property alike? Tested by the rule laid down in the New Jersey and South Dakota cases, what possible objection can there be to the levying of a special assessment for the improvement, construction and repair of roads where the general levy was insufficient to meet such requirements. If the general assessment and the special assessment were for absolutely the same purposes, they would not constitute duplicate taxation. The very most that could be said of them would be that one or the other was an additional assessment to pay for the necessary construction or improvement where either the general assessment or the special assessment had been insufficient to pay such expenses. In the case of Bramwell v. Guheen, 3 Idaho 347, 29 P. 110, this court recognized the validity of the statute providing for the levy of a special school tax. (Salisbury v. Lane, 7 Idaho 370, 63 P. 383.) A statute will not be held unconstitutional unless its conflict with the constitution is shown beyond all reasonable doubt. (Bon Homme County v. Berndt, 15 S. Dak. 494, 90 N.W. 147; Cook v. Port of Portland, 20 Or. 580, 27 P. 263, 13 L. R. A. 533; Cooley on Taxation, 3d ed., p. 394.)

AILSHIE J., STOCKSLAGER, C. J. Sullivan, C. J., Stockslager, J., and Ailshie, J., concurring.

OPINION

AILSHIE, J.

On the thirtieth day of January, 1903, the board of commissioners of Kootenai county, then being in regular session, made and entered of record the following order:

"In the Matter of Levying a Special Road Tax for the Year 1903.

"The levy of a special road tax being at this time under discussion, in the judgment of the board the regular tax levy for roads is insufficient to meet the requirements required on the roads in Kootenai county, the board by a unanimous vote, passed the following resolution:

"Be it resolved, that a special property tax of eight (8) mills on the dollar be, and the same is hereby levied against all of the taxable property in the several road districts of Kootenai county, Idaho in accordance with the provisions of an act of the legislature of the state of Idaho entitled, 'An act providing for a special property road tax, and defining the duties of officers in the levy and collection thereof.'

"And it is further resolved: That where work is performed in working out road tax hereby levied, $ 2 per day shall be allowed for each man, and $ 2 per day for each team, as full compensation for each day's labor performed upon the road."

At the time of making the foregoing order the appellant, the Humbird Lumber Company, a corporation, was the owner of large bodies of timber land situated within Kootenai county, and subject to the tax levy as set out in said order, and being dissatisfied with the action of the board and desiring to test the validity of the order and the constitutionality of the act of the legislature authorizing such an order and levy, appealed from the action of the board to the district court. After perfecting the appeal the appellant filed what was designated a complaint on appeal, and thereafter a stipulation was entered into between the respective counsel as to the facts in the case. The case was heard, and on the nineteenth day of January, 1904, the district court rendered and entered his judgment affirming the action and order of the board of commissioners, and holding the same valid and binding upon the appellant. From this order and judgment the appellant has appealed to this court.

It appears that the clerk did not transmit the papers on appeal to the district judge within five days after the filing thereof by appellant as required by ...

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